Terms of Sales and Service
4924 Balboa Blvd., #353
Encino, CA 91316
Dated: July 21, 2007
You agree to indemnify, defend, and hold harmless CONTACTDB its parents, subsidiaries, affiliates, officers, directors, employees, agents, and suppliers, and their respective affiliates, officers, directors, employees, and agents, from any claim, action, demand, or damage, including reasonable attorney’s fees, made by any third party or governmental agency arising out of or related to your use of any service offered by CONTACTDB or your violation of this Agreement, including without limitation, claims or suits for libel, violation of rights of privacy or publicity, interference with property rights, trespass, copyright infringement, trademark infringement, patent infringement or plagiarism. CONTACTDB may, at its sole discretion, assume the exclusive defense and control of any matter subject to indemnification by you. The assumption of such defense or control by CONTACTDB however, shall not excuse any of your indemnity obligations.
CONTACTDB SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF ANY SERVICE OFFERED BY CONTACTDB IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CONTACTDB DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CONTACTDB DOES NOT MAKE ANY WARRANTY THAT ITS SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT ANY SERVICE OFFERED BY CONTACTDB WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES CONTACTDB MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY SERVICE OFFERED BY CONTACTDBOR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH ANY SERVICE OFFERED BY CONTACTDB YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY SERVICE OFFERED BY CONTACTDB IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. CONTACTDB DOES NOT MAKE ANY WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM ANY SERVICE OFFERED BY CONTACTDB OR ANY TRANSACTIONS ENTERED INTO BY USE OF OR THROUGH ANY SERVICE OFFERED BY CONTACTDB NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CONTACTDB OR THROUGH ANY SERVICE OFFERED BY CONTACTDB SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
3. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL CONTACTDB OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE ANY SERVICE OFFERED BY CONTACTDB OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH ANY SERVICE OFFERED BY CONTACTDB OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF CONTACTDB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT CONTACTDB IS NOT LIABLE FOR ANY FAILURE TO DELIVER, HOLD, OR STORE EMAIL TRANSMITTED THROUGH THE SERVICE. YOU AGREE THAT CONTACTDB DOES NOT ENDORSE THE SUBJECT MATTER OF ANY OF ITS LISTS OR ANY OF THE CONTENTS OF COMMUNICATIONS TRANSMITTED THROUGH ITS SERVICE. YOU ALSO AGREE THAT CONTACTDB SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU, OR TO ANYONE, FOR THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR ARISING FROM USE OF ANY SERVICE OFFERED BY CONTACTDB IF YOU ARE DISSATISFIED WITH ANY SERVICE OFFERED BY CONTACTDB And YOUR EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE WITHOUT REFUND OF ANY KIND WHATSOEVER. YOU AGREE, AND ACKNOWLEDGE AWARENESS THAT CONTACTDB MAINTAINS A NO REFUND POLICY ON ALL PRODUCTS AND SERVICES OFFERED AT ALL TIMES.
4. 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.
6. Relationship of the Parties
The parties are independent contracting entities, and there is no partnership or agency relationship between them.
7. 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.
In the event of a dispute, Customer agrees to communicate their intent to CONTACTDB by contacting firstname.lastname@example.org prior to taking any other action, and attempt to resolve the dispute.
Failure to contact CONTACTDB and attempt a dispute resolution prior to taking any other action will result in a breach of this agreement by Customer. The Customer 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 California, USA 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 California, USA.
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;
CONTACTDB warrants that all emails delivered through the CONTACTDB network contain complete subscriber information including but not limited to subscribers Name & Postal Address. In the unlikely event that a complaint or complaints are sent to the ISP of an advertiser, upon request CONTACTDB will provide complete details to the ISP verifying that the complaint was from a legitimate subscriber. We are not responsible for Damages incurred by the inclusion of spam traps in any database sold, delivered to, or leased under this agreement.
11. Database Purchases and CAN-SPAM legal compliance
Can spam act of 2003: purchaser agrees that any use of this data will be in compliance with all applicable state and federal laws, including the can-spam act of 2003, and with purchaser’s own privacy policies. If using this data to send e-mail messages, such compliance includes, but is not limited to: (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 PO. box); (4) clearly identifying the e-mail message as an advertisement; (5) providing an opt-out notice with a functioning opt-out mechanism via e-mail or the internet which is operational for at least 30 days after sending the message; (6) honoring opt-out notices within 10 business days of receipt of each opt-out request; and (7) for e-mail 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. If reselling, sharing, renting or transferring this data, such compliance includes, but is not limited to, not reselling, sharing, renting or transferring the e-mail addresses of recipients who have opt-ed out of receiving e-mail messages. Purchaser 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. Purchaser agrees to indemnify Contactdb its clients, owners, officers, partners, members, managers, employees, agents, subsidiaries, and their respective successors and assigns, against any and all claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees) arising from or related to purchaser’s breach or alleged breach, or the breach or alleged breach of any person or entity to whom purchaser may have sold the data, of the promises and obligations herein.
Contactdb represents that it shall enter into a signed agreement(s) with web property owner (“publisher”) (and any other broker from which the data is being acquired, if applicable) similar to this certification whereby the publisher (and broker, if applicable) represents and warrants that the data referenced in above was collected in such a manner as to be in full compliance with “campaign specifics” and with all applicable state and federal laws, including the can-spam act of 2003, and with all applicable privacy policies. Such compliance includes, but is not limited to: (1) not having collected this data by e-mail address harvesting or dictionary attacks; and (2) not including the e-mail addresses of recipients who have opted-out of receiving e-mail messages in this data. Publisher will also represent and warrant that it can and will comply with, at a minimum, the requirements set forth herein, and agrees to indemnify and hold Contactdb band purchaser harmless from any violation of the can-spam act of 2003.
In the event that all the information the client purchased are irrelevant, Contactdb holds the Data Integrity Guarantee (DIG) wherein if there will be errors in the data within the list, the client will have to send those data back to ContactDB within 7 days from the date of the database delivery and replacement of new list will be provided free of charge.
The client agrees that the Data Integrity Guarantee (DIG) is valid and given to customized lists only and NOT applicable to the pre-packaged lists.
12. Gramm-Leach Bliley Act and the FTC Telephone Sales Rules
All buyers of data agree to follow all applicable state and federal laws concerning the protection and use of personal record data including but not limited to The Gramm-Leach Bliley Act and the FTC Telephone Sales Rules.
By placing an order with us you are subject to and bound by the terms of this agreement. All sales are final.