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Term and Survival. This Agreement has a 365 day term effective 4/1/10.
If neither party gives written notice of its intent to cancel the Agreement at least thirty (30) days before
the end of a term, this Agreement will automatically renew for successive one (1) year terms.
Upon clear and convincing evidence of a substantial and material breach of these Terms and Conditions,
either party may give written notice of cancellation of this Agreement, which shall be effective
within ninety (90) days of receipt of the cancellation notice. Thereupon, the party charged with
the substantial and material breach shall have forty-five (45) days to cure the problem to the
reasonable satisfaction of the complaining party. If the breach is reasonably cured, the notice of
cancellation shall therefore be vacated and withdrawn.
Charges. Client agrees to pay PrimeNet for its services at the rates specified in
the estimate. The charges do not include any applicable sales, use, excise or similar tax or levy, and Client
agrees to pay such charges except any charges based on the income of PrimeNet.
Payment.Client will remain obligated to pay in advance by at least three business days for the services notwithstanding (i) any failure on the part of PrimeNet to invoice Client therefor or (ii) any payments to a third party broker or agent representing the Client. Client shall also pay reasonable expenses PrimeNet may incur to enforce collection of any amount due under this agreement including, without limitation, reasonable attorney’s fees and court costs.
Materials Supplied. Client agrees and warrants that any materials, tapes, or disks (hereafter referred to as “materials”) which it provides directly or through a third party to PrimeNet for further service to be performed by PrimeNet under this contract shall be in good condition when received by PrimeNet and will be usable by PrimeNet in the performance of the services provided. PrimeNet reserves the right to inspect such materials and to stop performance of services where it reasonably believes that the condition of such materials will adversely affect its equipment or its performance of services provided. PrimeNet will advise Client promptly in writing of the problems which it has encountered and seek Client’s advice in solving the identified problems. Client and PrimeNet will work together in solving any such problems. Where such problems are caused by Client and involve additional expense to PrimeNet, Client agrees to pay such additional normal and customary expenses. Where such problems are caused by PrimeNet and involve additional expense to PrimeNet, PrimeNet will bear these costs.
Client’s Information. Any information captured by PrimeNet on Client’s behalf will be considered Client’s property. Customer lists and transactional data furnished by Client will remain Client’s property. PrimeNet will use its best efforts to maintain the proprietary and confidential nature of that information and of any confidential information Client may provide to PrimeNet as part of the relationship between both parties (so long as Client identifies which information Client considers to be confidential). Confidential information does not include information that is available from other sources without restriction. PrimeNet may use samples of mailing pieces used in fulfilling services for Client to show its capabilities to customers and its prospective customers.
Postal Regulations and payment. All postage monies must be in PrimeNet’s possession three days before the mail date to permit time for deposit with the U.S. Postal Service. For mailings using postage stamps or meters, PrimeNet requires postage checks at the same time material is scheduled to be received. If the postage deposit is not received, PrimeNet cannot advance the money required and the U.S. Postal Service will not accept Client’s mail. Client must make certain that enough postage for the entire mailing has been provided in advance, including foreign portions. Postage estimates may be based on USPS discount programs. PrimeNet cannot guarantee or be responsible for either USPS interpretation of its own regulations or for USPS factual determination that affect eligibility for specific discounts. Client will be exclusively responsible for any postage expense in excess of that which was estimated, even if PrimeNet offered information, advice, or services to attempt to obtain a lower postal rate.
Storage of Materials. Unless otherwise agreed in writing, Client will be charged for any materials that are stored at a PrimeNet facility. PrimeNet cannot be responsible for any loss or damage to materials stored by Client on PrimeNet’s premises.
Outside Lists. On behalf of a Client, PrimeNet may obtain and utilize mailing and/or telemarketing lists which, in whole or in part, PrimeNet does not create or maintain. Since the lists in question are not exclusively those of PrimeNet, PrimeNet cannot and does not warrant the accuracy of any such list or the quality of services provided by the list vendor.
Warranties. Client agrees to hold PrimeNet harmless and indemnify it from and against any and all loss, liability, damage, cost or expense, including reasonable attorney fees on account of any claim arising out of, resulting from, or based upon Client’s performance or failure to perform its obligation under this agreement and upon copyright or trademark infringement, right of privacy, libel, slander, defamation, right of publicity or commercial appropriation claims based on any materials supplied to PrimeNet by Client. PrimeNet warrants that the services performed pursuant to this Agreement will be provided to the best of its ability. In no event will PrimeNet be liable to Client or any person or entity claiming under Client for any lost profits, lost good will or any other consequential, incidental, exemplary or other damages arising out of, resulting from, based upon, or relating to the performance or failure to perform under this agreement. The measure of damages recoverable by Client shall not exceed the contract price charged for the particular services that Client claims was deficient. This is Client’s sole remedy against PrimeNet.
Non-Solicitation. Client agrees that without the prior written consent of PrimeNet, it will neither solicit nor hire any employee of PrimeNet (or any PrimeNet affiliate) at any time during the term of this Agreement or for a period of one year subsequent to the termination of this Agreement or any other service relationship. Failure to comply with this item will allow PrimeNet to receive remuneration from Client for damages incurred.
Non-Compete. Client agrees that they shall not engage, invest, advise, or operate in any business that competes directly or indirectly with PrimeNet during the term of this agreement.
Non-Assignment. Client will not assign this agreement or any of its rights thereunder without the prior written consent of PrimeNet. PrimeNet may assign this agreement to any affiliate or successor to all or substantially all of the assets used in the conduct of PrimeNet’s business without prior written consent of Client.
Governing Law. This agreement will be governed by and constructed in accordance with the laws of the State of Florida.
Entire Agreement. This agreement represents the full and final expression of the agreement between the parties hereto relating to the subject matter hereof and may not be modified or amended except by written instrument duly signed by both parties.
Non-Waiver. No waiver of any of the provisions of this agreement will be deemed or shall constitute a waiver of any other provisions whether or not similar, or will a waiver on one or more occasions constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
Severability. The provisions of this agreement are severable and the finding of any to be unenforceable shall not affect the validity of the remainder.
Notices. All notices, demands or the communications under this agreement shall be in writing and shall deemed to have been duly given or, except as expressly provided to the contrary in this agreement, on the third day after mailing, if mailed, to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed to Client and PrimeNet at the address shown herein. Either party may change its address in the manner set forth above.
Unforeseen Events. PrimeNet will not be liable for failure to perform its obligations under this Agreement because of any cause beyond PrimeNet’s reasonable control including, without limitation, strikes, acts of God, computer failure, telephone failure, or activities of the U.S. Postal Service.
privacy promise. PrimeNet endorses the use of The Direct Marketing Association’s (DMA) Mail Preference Service (MPS) and requests that Clients use those services in accordance with the DMA Privacy Promise.
Trademark & patent Rights. PrimeNet retains and owns trademark and patent rights to proprietary developed mail packages developed and used by Client. Client agrees that all ownership and usage rights are reserved to PrimeNet, unless otherwise specified in writing.
Sales Tax. All clients are responsible for paying sales tax to the State of Florida. If a client claims exemption from the Florida state sales tax, the client must have a valid form on file with PrimeNet.
Public Relations. PrimeNet has the authorization to publicize that we have a business relationship with Client.
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