The Share Group - Terms & Conditions
These Terms and Conditions supplement and are made a part of the Order Confirmation between Customer and Company as if fully set forth therein.
Order Confirmation Customer acknowledges and agrees that the Order Confirmation and these Terms and Conditions constitute the entire agreement (the "Agreement") between the parties regarding the data, records, lists and/or products described therein (the "Product") and supersede all agreements and understandings, oral and written, with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made which is not embodied in these Terms and Conditions or in the Order Confirmation, and no party shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. Furthermore, handwritten information on the Order Confirmation will NOT be deemed to be a part of the Agreement.
Compliance with Applicable Laws Customer acknowledges and agrees that: (i) it is not relying any legal advice from Company in connection with the use of the Product and (ii) all Product which Customer receives under the Order Confirmation shall be used only in substantial compliance with all applicable Federal, State, and local laws, rules, regulations, and ordinances, including but not limited to, those concerning privacy, telephone solicitation, email solicitation, fax broadcasts and direct marketing, such as: (a) the Federal Fair Credit Reporting Act; (b) the Gramm, Leach, Bliley Privacy Act; (c) the Do-Not-Call Implementation Act of 2003; (d) the Telephone Consumer Protection Act of 1991; and (e) the Children's Online Privacy Protection Act. Customer understands that any person violating such laws may be subject to civil and criminal penalties. Customer further acknowledges and agrees that it is Customer's sole responsibility to determine the applicability of any such laws, rules, regulations and ordinances. For use of Product comprised of phone numbers and email, Customer specifically agrees as follows:
Phone Numbers As a courtesy and if asked by Client, Company will do a soft scrub against the Federal "Do Not Call" list for consumer lists only. Customer acknowledges and agrees that if consumer phone numbers are downloaded, emailed, delivered, or contacted in any manner, Customer must: (1) subscribe to all applicable Do-Not-Contact lists and (2) strictly abide by all Do-Not-Call rules and regulations. There shall be no responsibility or liability upon or of Company for determining whether phone numbers on its lists may be registered under Federal and/or State "Do Not Call" laws or other laws governing telemarketers, and Customer shall be fully responsible for compliance therewith in connection with the use of Product rented hereunder.
Email Addresses Customer agrees that any use of any Product to send email messages will be in compliance with all applicable Federal and State laws, including the CAN-SPAM Act of 2003 and Customer's own privacy policies. If Customer uses any Product to send email messages, such compliance by Customer must, at a minimum, include: (1) not using forged, false or misleading header information; (2) not using false or misleading subject lines; (3) including the sender's physical address (not a P.O. Box); (4) clearly identifying the email message as an advertisement; (5) providing an opt-out notice with a functioning opt-out mechanism via email or the Internet which is operational for at least 30 days after sending the message; (6) honoring opt-out notices within ten (10) business days of receipt of each opt-out request; and (7) for email messages with sexually explicit material, including a warning in the subject line and requiring an additional step to view the material after opening the message. Subject to the terms and conditions of this Agreement, if Customer resells, shares, rents or transfers any Product, such compliance must, at a minimum, include prohibiting reselling, sharing, renting or transferring the email addresses of recipients who have opted out of receiving email messages. CUSTOMER FURTHER AGREES NOT TO SELL, SHARE, RENT OR TRANSFER THIS DATA TO OR WITH ANY PERSON OR ENTITY WHICH DOES NOT AGREE TO USE THIS DATA IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL LAWS, INCLUDING THE CAN-SPAM ACT OF 2003, AND WITH ITS OWN PRIVACY POLICIES. For email data purchased from Company which Customer chooses to deploy themselves, Customer acknowledges that they understand some third-party email deployment services do not permit deployment of purchased email data. It is highly recommended that Customer check with its internet service provider and its email deployment company, especially, but not limited to, companies such as Mail Chimp, Constant Contact and iContact (by way of example), before deploying any type of email advertisements, announcements, or other correspondence of any type regardless of its relationship with email recipients. Company will not be held liable for any issues arising as a result of Customer's third party email deployment service. Company guarantees a valid email address rate of 90% and a hard bounce rate of 5% or less so long as: (i) data is deployed by client within five (5) business days of receipt of data from Company and (ii) Customer uses a third party email deployment service that allows for purchased emails to be used. Any requests for hard bounce replacements must be provided within fifteen (15) days of data delivery. The request must include the hard bounced emails and a delivery report proving the hard bounces. Although Company endeavors to provide quality products and services, there shall be no liability or responsibility for the success of Customer's email campaign due to factors beyond the reasonable control of Company including but not limited to: (a) tracking and quantifying the success of Customer's campaign; (b) the look and feel of Customer's creative; and (c) deployment strategies, etc. Due to these factors, it is recommended that Customer have Company deploy email campaigns to track bounces, open rates, click-through to website offers, etc. Note. Email deployments are subject to use of supplemental advertising based on the discretion of the TSG email team. Client is allowing Company to use the creative design that Client has supplied or approved, plus alternate, similar versions Company produces for backfill sources, including but not limited to, Yahoo Gemini, Gmail Ads, and Social Ads (Facebook/Instagram). Simultaneously with deploying Client's email campaign, Company's backfill sources will target the same geography identified by Client's campaign, but demographics will be expert-selected to maintain the integrity of Client's targeting.
Use of Product and Lists Customer represents and warrants that: (i) if Customer is supplied with postal addresses, phone numbers or email addresses for a marketing campaign conducted/deployed by Company, said information is for Customer's internal use only, (ii) he/she/it is a merchant as understood and defined in the Uniform Commercial Code of the State(s) in which it operates, (iii) the Product rented hereunder is for one-time use only, (iv) no record in the Product, including without limitation, names, addresses, etc. will be retained or duplicated, and (v) it will not use any Product in connection with the promotion or sale of sexually explicit materials, drugs, alcohol products and publicly traded securities. Further, Customer is strictly prohibited from using source or origination information regarding any rented Product as part of Customer's telephonic presentation or printed mail piece, including without limitation, disclosing the name, identity or contact information of Company. NO EXCEPTIONS.
Digital Marketing Services Cancellation Contract will auto renew at the end of the term. Opt-out from services through written notice by sending an email to email@example.com. The Customer's opt-out term is stated explicitly in the "Notes To Client" section of Customer's OC (Order Confirmation). Once the stated term has been reached, Customer may then provide written notice. Payment amount may be adjusted for service changes and one-time projects upon Customer request. Ad spend is blended between web search and social media, and paid directly by Customer to advertising channels (Facebook Ad Manager, Google Ad Manager, LinkedIn Ad Manager, Bing Ad Manager, Twitter Ad Manager, etc.).
Disclosure of Proprietary Data To the extent that either Company or Customer discloses proprietary data and information to the other pursuant to this Agreement, they each acknowledge and agree that: (i) the disclosing party claims and reserves all rights and benefits afforded proprietary information under law, (ii) this Agreement and disclosure to the other does not effectuate any transfer of title or interest in or to any proprietary data or information of the disclosing party, and (iii) the other party is granted only a limited right of use of such proprietary data and information as may be necessary for the performance of this Agreement.
Term, Blocks, and Subscriptions All Product rented hereunder may be used by Customer on a confidential basis for the shorter of: (a) the period set forth on the applicable Order Confirmation or (b) twelve (12) months from the date of rental to Customer (the "Term"). Without the prior written consent from Company (which may be granted or withheld at Company's sole and unfettered discretion), Customer shall not: (i) re-rent any Product or otherwise permit any use of Product by or for the benefit of any party other than Customer; (ii) publish, distribute or permit disclosure of any Product, other than to employees and agents of Customer on a need-to-know basis for use in Customer's business; (iii) use or permit use of any Product for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third party; (iv) use or permit use of Product for the generation of any statistical information which is sold, rented, published, furnished or in any manner provided to a third party; (v) use or permit use of any Product to prepare any comparison to other information databases, which is sold, rented, published, furnished or in any manner provided to a third party; or (vi) use or permit use of any Product in connection with individual credit, employment or insurance applications.
Unused Records Customer understands that this Agreement expires at the end of the Term set forth on the Order Confirmation and any and all unused records that have not been downloaded will expire on said date. It is highly recommended that Customer use/download all records before the end of the Term as such records will not be available thereafter.
Payment of Product Unless expressly provided on the applicable Order Confirmation, Customer shall pay for all Product by credit card in the amounts and at the times provided on the Order Confirmation. Customer hereby irrevocably authorizes Company to charge the credit card account that has been provided by Customer to Company. Customer acknowledges and agrees that it has read and fully understands this Agreement and Cancellation Policy referenced herein. In the event Customer fails to timely pay the full contract price when due per the terms of the Order Confirmation, GP shall, in addition to the other rights and remedies set forth herein, have the right to exercise one or more of the following without further notice to Customer: (a) suspend Customer's access to its website created by GP, (b) remove any and all website content created by GP, (c) delete Customer's entire website containing intellectual properties created by GP, (d) replace Customer's website designed by GP with Customer's pre-existing website, and/or (e) terminate all work by GP for Customer in connection with the Digital Marketing program designed by GP, including without limitation, logos, landing pages, and email campaigns. In connection therewith, GP accepts no responsibility and shall have no liability for any reliance by Customer on the continued availability of any content or resources on Customer's website.
r identification by the abuse team as fraudulent or otherwise in violation of the T&C; or (vi) causes beyond the control of Company or that are not reasonably foreseeable by Company (for example, Acts of God/Force Majeure).
No Refunds or Returns Customer acknowledges that all Product orders received from Customer require Company to create a custom product for Customer. Accordingly, Customer agrees that: (i) no returns of Product or reimbursements therefore will be made; (ii) Customer is responsible for the full payment of such custom order; and (iii) such financial responsibility shall not be released due to any of: (a) Customer rejecting said order, (b) refusing to accept shipment, (c) stopping payment on its check, (d) requesting its credit card company to charge back or reverse the transaction or (e) changing the nature of the order, etc.
Company Representations and Warranties Company represents and warrants to Customer that:
- any work or materials produced or provided pursuant to this Agreement: (i) shall be free from computer viruses introduced into the software as a result of the negligence or intentional acts of Company and that the software will be free of software traps, viruses, worms, or code(including any undisclosed disabling device or code ) which would interfere with the intended use of the software in accordance with the specifications or which destroy or alter Customer 's data, files, or systems and (ii) shall not infringe upon or violate any patent, trademark, copyright, trade secret or any other intellectual property rights of any third party;
- its work under this Agreement shall be of professional quality consistent with industry standards and expectations for work of a similar nature;
- it has the right to enter into and perform its obligations under this Agreement and such performance hereunder will not breach any other agreement by which it is bound; and
- Product delivered to Customer under this Agreement(or under any Order Confirmation ) shall not be subject to any prior or conflicting rights of any third party of any nature whatsoever.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT AND SERVICES PROVIDED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer Representations and Warranties Customer represents and warrants to Company that:
- it has the right to enter into and perform its obligations under this Agreement and such performance hereunder will not breach any other agreement by which it is bound;
- it understands that Company is not affiliated with search engines including but not limited to Google, Yahoo, Bing, Ask and MSN and therefore, Company will not be held responsible for search engine policy, structure or algorithm changes;
- Company has the right to use of Customer 's name, Customer' s domain name, Customer 's logo and Customer' s keyword rankings on websites, case studies and other marketing materials;
- if contacted by an existing customer or potential customer, Customer will not disclose terms of the Agreement including but not limited to pricing, pricing structure, and agreement term; and
- it will not name or refer to Company in any of Customer's advertisements or promotional or marketing materials.
Disclaimer of Warranties Customer acknowledges and agrees that: (a) all Product and other goods and services are provided by Company on an "AS IS" basis; (b) no liability is assumed by Company for the accuracy, completeness, condition, suitability or performance of any Product and information provided hereunder; (c) output fields are subject to change without notice; (d) all representations and warranties, express or implied, relating to any such goods or services, including all warranties of merchantability and fitness for a particular purpose, their quality, their security, or their non-infringement are hereby disclaimed; (e) Company will not be liable for any indirect, exemplary, incidental or consequential or punitive damages arising out of or otherwise relating to the use of the any Product, goods and services, however caused, including but not limited to, loss of data, business interruption, loss of profits, or other economic loss; (f) due to the fact that data products can be copied easily, no order will be returned or accepted for credit or otherwise, unless first approved in writing by Company, (g) although industry averages may be quoted by representatives from time to time, individual results vary, and thus, except as expressly provided in this Agreement, no guarantee whatsoever is given for any results from the use of products sold or services provided; (h) Company will not be responsible for any records that are selected incorrectly and/or downloaded improperly by Customer, (i) any and all records downloaded from the Portal will be deducted from the amount of records purchased as set forth on the Order Confirmation, (j) Company will not be held liable for any records that are downloaded in error; (k) should at any time Customer does not completely understand how to use the Portal, Customer shall notify Company to seek supplemental training; and (l) the "Limitation of Liability" section set forth below shall govern the rights of the parties hereto.
Limitation of Liability Customer agrees, understands, and expressly acknowledges that: (i) when Company rents Product to any person or entity including Customer, Company neither assumes nor accepts any responsibility of any kind for defects, deficiencies, mistakes, ambiguities or inaccuracies of any kind or effect with respect to Data rented pursuant hereto; and (ii) while Company believes its information to be accurate, it does not, except as otherwise expressly provided in the Order Confirmation, warrant or guarantee any degree of accuracy of the Product rented, nor the outcome or results of any mailing or promotion or any other undertaking of Customer, and Company shall not be held liable in any manner with respect thereto. In all events, any liability hereunder or otherwise of Company and its representatives shall be limited to the amount paid by Customer for Product within the 12 months preceding the event which gives rise to liability and no more. Customer acknowledges and agrees that Company shall not be liable for indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business, loss of profits or investment or the like) whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if Company or its representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. The limitations of liability set forth herein are fundamental elements of the basis of the bargain between Company and Customer, and Customer acknowledges and agrees that Company would not, under any circumstances, provide its goods and services without such express limitations.
Indemnification Customer agrees to defend, indemnify and hold harmless Company, its subsidiaries and affiliates, and their respective officers, directors, agents, and employees from and against any loss, damage, expense, or cost, including reasonable attorneys' fees (including allocated costs for in-house legal services) arising out of or related to: (i) Customer's act or omission that constitutes a breach or an alleged breach, or the breach or alleged breach of any person or entity to whom Customer may sell Product (if permitted hereunder), of any covenant, duty, representation, or warranty of Customer under this Agreement and (ii) any claim that Company's use of Customer's trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party. Company shall not be liable to Customer, or to anyone who may claim any right, due to the parties' relationship, for any acts or omissions in the performance of said services on the part of Company or on the part of its agents, officers, directors or employees or assigns which result from the delivery of services made to Customer by Company and its agents, officers, directors, employees or assigns, unless said acts or omissions of Company or its agents, officers, directors, employees or assigns are due to gross negligence or willful misconduct. Customer agrees to reimburse Company, for all expenses, including reasonable attorneys' fees incurred, to enforce the terms and conditions of this Agreement, collect payments due hereunder, and defend against claims or actions by any person or entity arising from Customer's breach or alleged breach hereunder. These indemnification provisions shall survive the expiration or termination of this Agreement.
Arbitration, Class Action Waiver and Governing Law Any dispute, controversy or claim arising out of or relating in any way to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach hereof, shall be exclusively resolved by binding arbitration upon a party's submission of the dispute to arbitration. In connection therewith
- In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty(30) days of such notice, management level representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two(2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
- This Agreement to arbitrate shall be specifically enforceable. A party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration.
- THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO HAVE DISPUTES LITIGATED IN A COURT, TO A TRIAL BY JURY, AND ANY RIGHTS THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION IN ANY DISPUTE RELATING TO OR ARISING FROM THIS AGREEMENT.
- The arbitration shall be conducted by one arbitrator. If the parties are not able to agree upon the selection of an arbitrator, within twenty (20) days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association in accordance with the terms of this Agreement.
- The arbitrator shall have ten (10) years of experience in contract dispute resolution and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration.
- The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association.
- The arbitration shall be conducted in Ventura County, California.
- The laws of the State of California shall be applied in any arbitration proceedings (without regard to principles of conflict of laws) which shall be applied by the arbitrator in rendering a final decision.
- It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.
- Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
- The parties shall be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than one thousand (1,000) pages of documents and to take three (3) depositions not to exceed eight (8) hours for each such deposition. Any party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition. In addition to the foregoing, any party shall be entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable to testify at the hearing to preserve such witness' testimony for the arbitration hearing.
- The parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness ten(10) days before the arbitration hearing.
- The arbitrator shall have no authority to award punitive, consequential, special or indirect damages. The arbitrator shall not be entitled to issue injunctive and other equitable relief. The arbitrators shall award interest from the time of the breach to the time of award at the prejudgment interest rate under the California Civil Code. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable(including, without limitation, reasonable attorneys' fees and costs ), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator's award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to these arbitration provisions by bringing suit in any court of competent jurisdiction.
- These arbitration provisions shall survive the termination or cancellation of this Agreement.
Notices and Other Communications Any notice made in accordance with this Agreement shall be: (i) sent by certified mail or by recognized, national, overnight express mail, (ii) effective upon receipt and (iii) addressed to:
If to Customer:
As set forth on the Order Confirmation:
If to The Share Group:
The Share Group
Bennington, NE 68007
Miscellaneous Certain services, including use of the Portal, may include a file management library allowing Customer to store and access certain marketing creative (e.g. logos, email creative, images) and other documents (collectively, "Marketing Content") for Customer's internal use. Any such Marketing Content and art will remain the Customer's property; however, Customer gives Company permission to host, store, and to allow access to Customer's users. Customer is solely responsible for ensuring that it has all necessary rights and license to the Marketing Content and to use that Marketing Content in connection with the services. Company is not responsible for actions Customer takes with respect to Customer's Marketing Content. Customer agrees to not upload Marketing Content that, or otherwise use the services, to: (i) violate the intellectual property rights of any third party; (ii) engage in or promote illegal activity; or (iii) distribute viruses, worms, or other malware or malicious software. Company reserves the right to delete or disable content alleged to violate the foregoing; however, Company has no obligation to monitor or review Customer's Marketing Content. Customer acknowledges that any file management library is made available for Customer's convenience and is not intended to be used as a data backup service or in connection with disaster recovery. Customer is responsible for maintaining independent copies of all Marketing Content, including backup copies. Marketing Content is subject to deletion upon termination.
No modifications of this Agreement may be made unless they are in writing and hand signed by a duly authorized officer of the party to be charged. Time is expressly declared to be the essence hereof, and it is specifically agreed that no waiver of any breach or default by Customer shall be deemed a waiver of any breach or default thereafter occurring.
This Agreement may be executed in electronically transmitted portable document format and may be in any number of counterparts each of which shall be deemed an original of the same document.
The person signing this Order Confirmation on behalf of Customer represents and warrants that: (i) he or she is duly authorized and has the legal capacity to execute and deliver this Order Confirmation and the related Terms & Conditions on behalf of Customer, (ii) the execution and delivery hereof and the performance of Customer's obligations hereunder have been duly authorized, and (iii) this Order Confirmation and the related Terms & Conditions is a valid and legal agreement binding on Customer and enforceable in accordance with its terms.
For proper credit, please send the remittance form with payments. A finance charge of 1.5% per month shall be added to the balance due if the account is not paid within thirty (30) days from the invoice date.