Terms & Conditions
1. WARRANTIES
LATIN XPERIENCE MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL, POP UPS or BANNER
ADVERTISEMENTS, EXPRESS OR IMPLIED. THIRD PARTIES PROVIDE THE EMAIL
ADVERTISEMENTS ON AN “AS IS” BASIS. LATIN XPERIENCE (XPERIENCE) 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.
2. Payment
Advertiser shall pay in full the fees charged by Latin Xperience in the invoice. If Advertiser fails to pay the full amount of the charges detailed in any Latin Xperience 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 Latin Xperience’s cost of collection of such charges, including without limitation Latin Xperience’s reasonable attorneys’ fees.
3. Late Fees
In addition to the terms described in Section 3, if Advertiser fails to pay the full amount of the charges detailed in any Latin Xperience invoice within thirty (30) days of such invoice, Advertiser shall pay Latin Xperience a Late Fee in the amount of 5% of the charges detailed in such Latin Xperience invoice.
4 Indemnification
Advertiser shall indemnify, defend and hold harmless Latin Xperience 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. Latin Xperience shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL LATIN XPERIENCE BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST
PROFITS). THE LIMIT OF LATIN XPERIENCE 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 LATIN XPERIENCE UNDER THE INVOICE.
6. Copy Approval
Advertiser must deliver to Latin Xperience, the content of the advertisement Advertiser is contracting Latin Xperience to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to Latin Xperience's approval. Latin Xperience 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, Latin Xperience shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy.
7. Details of Broadcast
The email messages broadcast by Latin Xperience 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 Latin Xperience (or affiliate) database.
8. 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.
9. Assignment
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
10. Relationship of the Parties
The parties are independent contracting entities, and there is no partnership or agency relationship between them.
11. Entire Agreement
Except as expressly modified or supplemented by a writing executed by both parties, the Terms and Conditions described herein and in the invoice specifically incorporating these Terms and Conditions are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein. In the event of any conflict between these Terms and Conditions and any other document (including, without limitation, the Invoice and any Advertiser invoice, insertion order, or purchase order), the provisions of these Terms and Conditions shall govern. The waiver of any right, breach, or default shall not constitute a waiver of any other right or of any subsequent breach or default.
12. Disputes
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.
13. Severability
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
14. Headings
The headings of these Terms and Conditions are for convenience only and shall not be used to construe the meaning of this Agreement.
Additional Terms for Postal data and other applicable data.
- Warranty and Remedies:
Xperience, Latin Xperience warrants that the Data be as current, accurate and complete as may be achieved using the source data and data processing methods normally employed by Latin Xperience and its data partners in the ordinary course of its business; provided, however, the
Data and the Latin Xperience Services are not warranted as being error free. THE FOREGOING IS A LIMITED WARRANTY AND XPERIENCE, LATIN XPERIENCE MAKES AND CLIENT RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
- Manner of Use:
Client agrees that it will use the data in accordance with all federal, state and local laws applicable and relevant to Direct Marketing Associations Guidelines. The data shall not be duplicated, retained or reused for any other purpose. The data may not be used to enhance a file or list owned by any third party, to develop any list, or to prepare, publish or maintain any directory.
- Limitation of Liability:
Latin Xperience’s liability for any claim, regardless of the form of action, whether in contract, tort or negligence, for any damages resulting from or in any manner connected with the Data or Latin Xperience Services, shall be limited to the lesser of (i) Client’s actual direct damages related thereto, or (ii) the amount of the fees paid by client for the Data or Latin Xperience Services which are in error. In no event shall Latin Xperience be liable for any other damages whether indirect, incidental, special or consequential including, but not limited to, lost business and lost profits, whether foreseeable or not, even if advised of the possibility of such damages.
- Indemnity:
Client agrees to indemnify and hold Xperience, Latin Xperience, harmless from and against any claim made by any third party which arises from or is in any way connected with the use of any Data, or the performance of any services by client. The obligations of client under this Section shall survive any termination of this Agreement.
- Permitted Use of the Data:
The Data may be used solely for one single mailing.
- Seeding:
All Data is seeded to detect any unauthorized use or duplication thereof.
- Cancellation Charges:
Client is responsible for total amount invoiced for data that has been processed and transferred. For data that has been processed but not transferred to client, the cancellation charges include: $250.00 processing cancellation fee. $8.00/M run charge for records processed, and all customer formatting and data processing fees applicable.