Email Terms and Conditions
BMI VENTURES, INC. MASTER SERVICES AGREEMENT
Client agrees to accept and pay for, and BMI agrees to provide, the marketing services identified and set forth in this Services Agreement (“Services”). The Services may be described further in an insertion order, estimate or invoice (collectively “Insertion Order”), each of which shall be incorporated herein by reference and, together with this Services Agreement, shall collectively be referred to as the “Agreement”. In any instance where Client is an agency contracting on behalf of a Client, any reference to “Client” shall refer jointly to Client and the agency for the applicable underlying Client. If a compliance issue arises related to deployment of any Campaign by Client, BMI, in consultation with Client, shall determine whether or not the e-mail deployment complies with all applicable Laws. BMI shall retain the sole discretion to suspend or reject such Campaign(s) deployment and/or terminate services to Client.
(B) BMI Creative Materials.
BMI shall provide Client with marketing services (the “Services”) as follows:
i. In connection with the Services, BMI shall undertake digital marketing campaigns (“Campaign”) whereby BMI shall distribute and deploy advertising materials to consumers within a general profile identified by Client;
ii. The advertising materials deployed in a Campaign may include various types of media such as e-mails, banners, buttons, text-links, clicks, co-registrations, display ads, pop-ups, pop-unders, graphic files and similar online media (collectively, “Creative Materials”);
iii. BMI shall select the type of media that will comprise the Creative Materials contained within each Campaign, the percentage of each type of media and ratio of one type of media to another;
iv. BMI shall determine media selection to include in the Creative Materials for each Campaign deployment based upon availability of media and fit within consumer target parameters; and
v. To the extent that Client has also purchased Elite Remarketing Plus retargeting services, BMI shall provide the number of impressions identified in an Insertion Order in accordance with applicable law, all other factors to be determined by BMI.
(C) Client Compliance Obligations.
Client is solely responsible for ensuring that the Creative Materials it furnishes to BMI comply with all local, state and federal laws, rules and regulations. Client represents and warrants that: (a) it is in good standing in the state of Client’s organization; (b) it is qualified to do business in each state in which Client provides products and services and has in effect and good standing all licenses and permits necessary or required to provide such products and services; (c) it will not violate the rights of any third party including, without limitation, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary/intellectual property right; (d) it’s products or services will not target consumers under the age of thirteen (13); (e) it owns and/or has any and all rights, title, and interest in and to the Creative Materials, and to permit the use of the Creative Materials by BMI as contemplated by this Agreement and the applicable IOs; (f) the Client’s website and/or creative content shall not be, nor contain any material that can be considered, defamatory, libelous, pornographic, obscene, hate-filled, or otherwise objectionable media; (g) no portion of Client’s website and/or Creative Materials is/are the subject of any ongoing investigation by any local, state, or federal regulatory or quasi-regulatory authorities; (h) for “e-mail” Campaigns, Client shall provide BMI a suppression list with respect to Client and its affiliates. Client shall supply this suppression list data to BMI seventy-two (72) hours in advance of any scheduled Campaign deployment and include, without limitation, all opt-out names for specific offers or advertisements to be sent by BMI pursuant to the terms of this Agreement. BMI reserves the rights to add such addresses should Client fail to include same, but BMI is in no way responsible for including such address where Client fails to do so. Client shall provide BMI with any Internet-based opt-out mechanism, in its possession such as a functioning e-mail address or opt-out URL, as well as an address for postal opt-outs; (i) any and all e-mail based Creative Materials, including, but not limited to, any and all e-mail addresses and header information (e.g., “From” and “Subject” lines), supplied by Client shall comply with all applicable Laws. Client is solely responsible for analyzing all content, creative materials, text, images, subject lines and advertisements to ensure compliance with all federal, state/provincial and local laws and regulations. Client shall be responsible for all costs, liens and penalties caused by its failure to comply with all laws, codes, permit requirements, rules, orders, judgments, ordinances or provisions or any federal, state or local government authority. Client understands it has specific obligations, and shall exercise heightened diligence, in connection with any advertising related to alcohol, firearms, weapons, explosives, ammunition, adult/sex industry products and services, and controlled substances and pharmaceuticals. Examples of Client’s responsibilities by way of illustration only shall include, without limitation: (a) ensuring purchasers or end users are of the age required under the applicable law before offering, providing, selling or otherwise making available products that have age requirements or are inherently dangerous, such as in the case of advertisement of alcohol, tobacco, firearms, weapons, pharmaceuticals, drug paraphernalia, Designer Drugs, bath salts, controlled substances, fireworks, explosives, adult entertainment materials, clothing, devices and paraphernalia, legal pornography, dating services; (b) ensuring purchasers or end users have the proper prescription and meet all requirements under the law required for delivery of the product or service Client advertises; and (c) ensuring advertisement does not offer giveaways or enticements that are prohibited under the applicable law. Client understands that federal, state and local laws vary in connection with advertising, offering, sale and provision of products and services, especially those that require heightened diligence, and accepts sole responsibility as provided in this Agreement. Client is solely responsible for fulfilling all obligations, promises, offers or inferences advertised or contained in all content, creative materials, text, images, subject lines and emails. Client further understands and agrees BMI is an internet user publishing content created by others in the performance if its services
II. Payments and Credit.
Client shall pay BMI in accordance with the payment provisions identified in each specific Insertion Order. All payments are payable to BMI exclusively at its principal business location at 1095 Broken Sound Parkway NW, Suite 300, Boca Raton, Florida 33487. Additional terms and conditions of the Campaigns entered into hereunder (each, the “Campaign Terms”) may be set forth in an Insertion Order which shall incorporate this Agreement by reference. Client understands that the actual fees that become due and owing to BMI arising under this Agreement shall ultimately be based upon completion of Campaign deployment. As applicable, BMI may submit invoices to Client for fees and charges associated with the Campaigns, less any monies on deposit. Unless otherwise specifically stated in a writing executed by both parties, any undisputed portion of an invoice shall be paid when due. Failure to provide such invoices shall not relieve Client of any liability or obligation hereunder. The parties understand and agree that payment for services is an independent covenant and not conditioned upon any event or Client’s receipt of payment from a third party. Interest will accrue on any past due amounts at the rate equal to the greater of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. In addition, Client shall be liable to BMI for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. BMI may apply any deposits made in connection with the Agreement to outstanding amounts owed by Client to BMI. Any/all claims or disputes that Client may have with respect to any invoice or transaction must be supported by commercially reasonable data and submitted in writing to BMI within fourteen (14) calendar days after the invoice date, otherwise such claim or dispute will be irrevocably waived and such charge will be final and not subject to dispute.
Client must provide BMI with written notice of any requested change before Campaign deployment, Client may not terminate a Campaign once a Campaign has begun to deploy. In the event that a prepayment has been made and Client fails to provide timely notice of intent to pause and/or terminate an approved Campaign, BMI is under no obligation to provide Client with a refund amount. Either party may terminate this Agreement, or suspend any Campaigns at its option, immediately without notice to Client for any reason. Upon termination or expiration of this Agreement for any reason: (a) Client will pay BMI all amounts then due and owing as of the termination date within due date; (b) any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and (c) any and all “Confidential Information” or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, and any accrued but unpaid payment obligations, shall survive and remain in effect in accordance with their terms.
EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SERVICES PROVIDED BY BMI PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND “AS AVAILABLE” AND NO REPRESENTATIONS OR WARRANTIES ARE MADE THAT THE SERVICES WILL PROVIDE ANY PARTICULAR RESULTS. THE SOLE AND EXCLUSIVE WARRANTY UNDER THIS AGREEMENT IS BMI’S WARRANTY OF NON-INFRINGEMENT upon any third party intellectual property CONTAINED ABOVE IN PARAGRAPH 1(C). THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, OF ANY KIND, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS AGREEMENT. BMI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS SPECIFICALLY UNDERSTOOD THAT BMI DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES PROVIDED WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. NEITHER BMI NOR ITS THIRD PARTY SUPPLIERS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, LOSS OF PRIVACY, DAMAGES TO THIRD PARTY EVEN IF BMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY WHETHER ANY CLAIMS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE.
V. Limitation of Liability.
CLIENT ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE THE RECOVERY OF NO MORE THAN THE AMOUNT PAID BY CLIENT TO BMI UNDER THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF BMI ARISING OUT OF THESE TERMS AND CONDITIONS OF THIS AGREEMENT.
Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation or each party, enforceable against each party in accordance with its terms; and (d) it will comply with all applicable federal and state laws, rules, and regulations applicable to its performance under the Agreement, including, but not limited to, the CAN-SPAM Act of 2003 (as amended), Canada’s Anti-Spam Legislation (“CASL”) (as amended from time to time) and any and all Federal Trade Commission implementing regulations (collectively, “Laws”).
Client shall indemnify, defend and hold harmless BMI, its subsidiaries, affiliates, directors, officers, employees, agents, successors, agents, vendors, partners and assigns from and against any and all fines, suits, claims, demands, penalties, liabilities, costs, expenses, losses, settlements, judgments, awards, and actions of whatever kind or nature, including attorney’s fees and costs (and costs and fees on appeal), and damages of any kind that may at any time be incurred by any of them by reason of any claims, suits, administrative proceedings, actions, arbitrations or criminal investigations arising from or related to (i) breach of any of its representations or warranties or covenants contained in this Agreement; (ii) all claims arising out of or related to Creative Materials and Advertisements approved by Client; (iii) failure to meet obligations provided or implied in the Creative Materials and Advertisements; (iv) violation of any international, federal, state or local law, rule, code or regulation related to the content or nature of Client’s campaign; and (v) Client’s failure to comply with its compliance obligations under this Agreement.
BMI agrees to defend, indemnify and hold harmless Client from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or arising out of BMI’s breach of the Agreement. If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party‘s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Creative Materials, conversion rates and response rates shall be considered “Confidential Information” of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement.
Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, BMI may disclose, without prior written notice to Client, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
Conversely, Client may not disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement, without first providing BMI with no less than five (5) days prior written notice. Violation of this section by Client shall be considered a material breach of the Agreement and will entitle BMI to terminate this Agreement and any/all current IO’s without liability to Client, and to pursue any and all other remedies available at law or in equity. Client acknowledges that a breach of this section would cause BMI irreparable harm and that BMI shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs. BMI may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages. Each party’s confidentiality obligations under this section are independent covenants and shall survive termination of the Agreement.
Client may not assign, transfer, or delegate any of its rights or obligations under this Agreement or any IO without the prior written consent of BMI, and any attempts to do so shall be null and void. Subject to the foregoing limitation, the Agreement, together with any and all Insertion Orders, will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
(B) Dispute Resolution.
This Agreement shall be treated as though it were executed and performed in Palm Beach County, Florida, and shall be governed by and construed in accordance with the laws of the State of Florida (without regard to conflict of law principles). Any controversy or claim arising out of or relating to this Agreement, its existence, construction, validity, interpretation, meaning, performance, nonperformance, enforcement, operation, continuance, termination or breach shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This binding arbitration provision shall not, however, prevent either party from seeking injunctive relief in a court of competent jurisdiction.
(C) Costs and Attorney’s Fees.
In addition to all other rights and remedies a party may have, the prevailing party in any legal action or arbitration shall be entitled to an award of its costs, which shall include reasonable attorney’s fees, including those incurred on appeal, enforcement or collection of judgment or proving entitlement to or amount of attorney’s fees and costs, from the non-prevailing party.
(D) Unauthorized Use.
Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Client agrees that any unauthorized and/or unlawful use of the Services would result in irreparable injury to BMI for which monetary damages would be inadequate. Unauthorized use includes, without limitation, Client use of Services not paid for when due. Nothing contained in this Agreement shall be construed to limit any legal remedies available to BMI. CLIENT AND BMI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Client and BMI agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific proviso is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(E) No Third Party Beneficiaries.
Unless expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties hereto and their respective legal representatives, successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any party to this Agreement.
(F) Entire Agreement; Construction; Modification.
This Agreement and all applicable Insertion Orders represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or verbal, between the parties. The Agreement and all applicable Insertion Orders shall be construed as if both parties equally participated in its drafting, and thus shall not be construed against the drafter. To the extent that anything in or associated with any Insertion Order is in conflict or inconsistent with this Services Agreement, this Services Agreement shall take precedence. The Agreement and any applicable Insertion Order may be amended only by a written agreement executed by an authorized representative of each party.
(G) Non-Waiver; Severability.
No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
(H) Status of the Parties.
The parties are independent contractors. There is no relationship of partnership, agency, employment, franchise, or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf.
Client hereby permits BMI to identify Client in BMI’s advertising, marketing, promotional materials, and on the Site (“Advertising Materials”). Client hereby grants BMI a limited, royalty free, non-exclusive license to use Client’s trademarks, service marks, and/or logos (collectively, the “Trademarks”) identified by Client and so associated with Client’s name in all applicable Advertising Materials. BMI’s right to use the Trademarks shall be limited to the Advertising Materials. BMI acknowledges that, as and between BMI and the Client, Client is the owner of the Trademarks.
(J) Force Majeure.
Each party shall be excused from performance of its non-monetary obligations for any period and the time of any performance shall be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority (except as defined below), war, civil disturbance, court order, labor dispute, third party non-performance (including the acts or omissions of any suppliers, agents or subcontractors) or any other cause beyond its reasonable control, including hurricanes, inclement weather, failures or fluctuations in electrical power, heat, light, air conditioning or telecommunication equipment or lines or any other equipment. Such non-performance shall not be a default under this Agreement or grounds for termination of this Agreement unless such non-performance is not cured within sixty (60) days.
All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including electronic transmission) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, electronically transmitted, or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested, addressed to:
If to BMI:
1095 Broken Sound Parkway, NW
Boca Raton, FL 33487
As per relevant contact information set forth on the applicable Insertion Order, or to such other address as either party may designate by notice complying with the terms of this section. Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery; and (b) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed.
The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.
(M) Electronic Signature.
Client acknowledges and agrees that by signing by hand or by assenting to the terms hereof electronically that you are expressly agreeing to the terms of this Agreement. Client acknowledges and agrees that by accessing this Services Agreement via, without limitation, links made available within the BMI “Insertion Order,” that Client expressly assents to the terms hereof electronically by clicking on the checkbox, the button labeled “I Agree” or such similar labels as may be designated by BMI to accept this Services Agreement. Client acknowledges and agrees that by doing so, it is affixing its electronic signature, it is submitting a legally binding electronic signature and it is entering into a legally binding contract. Client acknowledges that Client’s electronic submissions constitute Client’s agreement and intent to be bound by the Services Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY BMI. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
(N) Waiver of Jury Trial.
THE PARTIES HAVE AGREE TO ARBITRATE THEIR DISPUTES. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, LITIGATION OR COURT ACTION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSSCLAIMS OR THIRD-PARTY CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS A SIGNIFICANT CONSIDERATION TO, AND A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT EITHER PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION; SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE PARTIES FURTHER AGREE THAT THE INCLUSION OF CLAUSE SHALL NOT BE INTERPRETED TO WAIVE, DIMINISH OR CREATE AMBIGUITY WITH RESPECT TO THE PARTIES’ AGREEMENT TO ARBITRATE.