Cutty Powers (“Company”) is not responsible for the success of its Customers advertising campaign. No refunds or credits will be authorized. All representations and warranties whether express or implied, including without limitation, any warranties of merchantability or fitness for a particular purpose, are hereby disclaimed by Company. In no event shall Company be liable for any direct, indirect, special, exemplary, incidental, consequential or punitive damages, irrespective of whatever such damages were foreseeable or unforeseeable.
The limit of Company liability (whether in contract, tort, negligence, strict liability or by statute or otherwise) in any manner related to this agreement, for any and all claims, shall not in the aggregate exceed the fees and expenses paid for the services rendered by Company. In no event shall either party be liable for consequential, incidental or punitive losses, damages or expenses (including lost profits.) Any action by either party must be brought within six (6) months. Venue and jurisdiction for any claim arising from or out of this Agreement shall be in Ocean County, New Jersey.
Cutty Powers sends only opt in (permission based) emails in accordance with the CAN-SPAM Act. When you provide email lists to us for delivery, you are making the claim that: Your list is consent based – All contacts have given you or your business their prior consent to receive email communications. Your list is NOT a third party list – Your list has not been purchased, rented, appended or given to you from any third party source. Your list does NOT contain role addresses or distribution lists – E.g. email addresses that may be received by more than one individual: [email protected], [email protected], [email protected], [email protected], etc. Your list does NOT contain email addresses captured in your address book without prior consent. Including but not limited to: user group addresses, transactional addresses or auto-response addresses. Violation of these rules will make you subject to our Anti-Spam Policy and may result in the immediate termination of your account. Please contact Customer Support with questions.
Customer assumes full responsibility for the content of recorded message, for the phone data provided (if other than us) and customer is responsible to abide any applicable state or federal laws regarding automated calls. Cutty Powers will dial the numbers provided by customer and play the recorded message provided by customer to live answered calls and/or answer machines as indicated by customer on order form. Busy and non answered calls will be redialed for maximum completions. Customer understands that, due to unpredictable phone conditions, answer detection is not 100% accurate. Cutty Powers will keep all data received from customer confidential. COPY APPROVAL All Copy shall be subject to Cutty Powers’s approval. Cutty Powers 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, Cutty Powers shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy.
DETAILS OF BROADCAST
The email messages broadcast by Cutty Powers 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 Cutty Powers (or affiliate) database. Cutty Powers reserves the right to multichannel these offers providing real visits to web pages and sites using search, text links on affiliated sites, exit pops, email and stand alone banners. All visitors provided to our clients will be 100% real visitors.
HARDWARE, SOFTWARE, and DATABASE
Cutty Powers shall obtain and maintain the computer hardware and software necessary to perform its obligations under these Terms and Conditions. Unless otherwise noted, such hardware and software shall not be dedicated hardware or software. Nothing in these Terms and Conditions shall grant any right, title or interest in or to the Cutty Powers (or affiliate) database, hardware or software.
Advertiser shall pay in full the fees charged by Cutty Powers in the invoice. Advertiser agrees to pay all of Cutty Powers’s cost of collection of such charges, including without limitation Cutty Powers’s reasonable attorneys’ fees.
Advertiser shall indemnify, defend and hold harmless Cutty Powers 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. Cutty Powers shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information.
Cutty Powers makes no warranty whatsoever as to the advertisements express or implied. Third parties may provide email advertisements on an “as is” basis. Cutty Powers 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 arising from usage of trade, course of dealing or course of performance.
LIMIT OF LIABILITY
In no event shall Cutty Powers be liable for indirect, special, exemplary, consequential, incidental or punitive loss, damage or expense (including lost profits). The limit of Cutty Powers 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 Cutty Powers under the invoice. 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.
Assignment Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
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.
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 New Jersey 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 Somerset County, New Jersey.
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.