MCH Standard Terms & Conditions
MCH, Inc. Standard Terms and Conditions
MCH, Inc. is herein referred to as “MCH” and the customer licensing MCH products and services (“Products and Services”) under a Products and Services Discount Agreement with MCH or licensing MCH information (“Licensed Information”) under a Database Agreement with MCH or licensing any MCH products and services where a signed MCH order confirmation document that refers to these Standard Terms and Conditions is referred to herein as “Customer.” The applicable agreement and these Terms and Conditions, any price list or schedule, quotation, acknowledgment or invoice from MCH relevant to the license of Products and Services or the license of Licensed Information, and all documents incorporated by reference therein, constitute the entire agreement (“Agreement”) between MCH regarding such sale or license. These Terms and Conditions shall be deemed to be an integral part of all acceptances by MCH. MCH reserves the right in its sole discretion to refuse orders.
- Acceptance. All Customer orders (offers) are subject to acceptance at MCH’s offices before any contract is formed. It is expressly understood and agreed by the parties that all customer orders (offers) will include these Terms and Conditions, and that acceptance by MCH of any Customer order is expressly limited to and conditioned upon Customer’s acceptance of, and assent to, these Terms and Conditions. Each order, when accepted by MCH, shall constitute a binding contract governed by these Terms and Conditions. Any additional, inconsistent or different terms and conditions contained in any documents submitted by Customer to MCH at any time will not be binding on MCH in any manner whatsoever and are hereby expressly rejected by MCH, unless such terms are expressly agreed to by both the parties in writing.
- Prices. All published prices are net and exclude any taxes (including but not limited to, city, county, state, and Federal taxes where applicable) and shipping charges, which are to be borne by Customer. All typographical or clerical errors made by MCH in any quotation, acknowledgment or publication are subject to correction.
- Terms and Conditions Applicable to Products and Services. In addition to the Terms and Conditions set forth herein, the following provisions apply and are incorporated into such Terms and Conditions with respect to each Products and Services Discount Agreement entered into between MCH and Customer or licensing of any MCH products and services where a signed MCH order confirmation document that refers to these Standard Terms and Conditions is used:
- Customer may order Products and Services from time to time under a Products and Services Agreement at prices set forth therein. Unless otherwise agreed to in writing by the parties, such Products and Services are licensed for one time use only.
- If Customer selects the Prepaid Discount Option, Customer may use the prepaid products and services, including deploying any number of e-mail or standard mailing campaigns, as applicable, until the maximum prepaid allowance is reached or until the end of the 12 month period immediately following the date the Agreement is executed. E-mail usage or standard mailings in excess of the maximum prepaid allowance will be subject to standard pricing listed in the Agreement.
- If Customer does not select the Prepaid Discount Option, only orders billed to one address count toward annual buying requirements.
- All of the Products and Services provided under the Agreement will be deemed to be accepted by Customer, unless Customer reports to MCH all deficiencies in any such Products and Services within ten (10) days after receipt thereof.
- Terms of Payment. Payment terms are net thirty (30) days from date of MCH’s invoice in U.S. currency, unless other terms are agreed to by the parties in writing. MCH shall have the right, among other remedies, either to terminate the Agreement or to suspend further performance under the Agreement with Customer if Customer fails to make any payment when due or if Customer fails to comply with any provision of the Agreement. Customer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to MCH is not paid when due, it shall bear interest at 1.5% per month from the date on which it is due until it is paid. Should Customer’s financial responsibility become unsatisfactory to MCH, cash payments or security satisfactory to MCH may be required by MCH for future deliveries. If such cash payment or security is not provided, in addition to MCH’s other rights and remedies, MCH may discontinue deliveries.
- Limited License. MCH grants Customer a nonexclusive limited license to use the Licensed Information, portions of which have been compiled, authored by, and/or licensed to MCH. Customer agrees that the Licensed Information is proprietary, copyrighted work of MCH and contains compilations of original authorship containing confidential information that does derive independent economic value, actual or potential, from not being generally known. Customer agrees that it will not commit or permit any act or omission by its agents, employees, or a third party that would impair MCH’s copyright or other proprietary rights in the Licensed Information.
- Confidentiality. The Licensed Information is licensed to Customer on a confidential basis for the internal use of Customer. The Licensed Information may not be disclosed or otherwise made available in whole or in part to any third party, in any manner; provided, however, that Customer may provide the Licensed Information to a third-party processor (such as a letter shop or service bureau) for processing on Customer’s behalf so long as Customer is responsible for any misuse of the Licensed Information by such third party. This Agreement specifically prohibits any activity of the Customer or any other person acting for or on behalf of Customer that would alter, modify, or adapt the Licensed Information, including, but not limited to, translating, de-compiling, disassembling, or creating derivative works. Customer will not use Licensed Information as a factor in establishing an individual’s eligibility for (a) credit or insurance to be used primarily for personal, family, or household purposes, or (b) employment. MCH retains all ownership rights (including copyrights and other intellectual property rights) in the Licensed Information, in any form, and Customer obtains only such rights as are explicitly granted in this Agreement. Customer agrees that money damages would not be a sufficient remedy for any breach of this Section 5, and that MCH will be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Section 5, in addition to all other remedies available to MCH at law or in equity.
- Compliance with Laws. MCH provides its Products and Services and Licensed Information only for lawful purposes and expressly prohibits the use of any of the foregoing in any unlawful manner. Customer acknowledges that (a) it is a violation of Federal and state law to send unsolicited advertisements to a fax machine or an opt-out e-mail address, and (b) anyone violating those laws may be subject to civil and criminal penalties. Customer further acknowledges that MCH has not processed any content or information contained in or provided in connection with its Products and Services or Licensed Information against Federal or State “Do Not Call Lists” or Customer’s internal do-not-call list, and Customer is responsible for all such processing. Customer represents, warrants and covenants that it complies with, and will continue to comply with, all applicable Federal and State laws when using MCH’s Products and Services or Licensed Information, including but not limited to any laws relating to the transmission of unsolicited advertisements, do-not-call lists, telemarketing, sweepstakes, direct mail commerce, copyright or privacy. MCH shall not be responsible for any fines, penalties, judgments or other liability incurred by Customer as a result of Customer’s use of any content or information provided by MCH.
- Warranty. MCH warrants to Customer that: (1) MCH owns, or has a valid license from any third party(s) to provide the Data as stated herein; (2) MCH possesses a valid compilation copyright therein, and has the right to license the Data therein; (3) the MCH Database and Data and all components and elements thereof including, but not limited to, the methods, processes and documentation relating to compiling and storing the Data such as scripts, programs, data dictionaries, directories, data base building instructions and other documentation related to the Data does not infringe any other party’s copyright, patent, trade mark, trade secret or other proprietary right; (4) the information included in the Data has been acquired legally, does not infringe any other party’s copyright, patent, trade mark, trade secret or other proprietary right and does not violate any law of the United States, or any state, municipal or local government, and (5) the Data have been adequately compiled and formatted, and the license conveyed herein does not violate any law of the United States or any state, municipal or local government.
- Disclaimer of Warranties. EXCEPT AS OTHERWISE AGREED TO IN A WRITING SIGNED BY MCH, MCH DOES NOT MAKE ANY WARRANTY, EITHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, AS TO THE QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PRODUCTS AND SERVICES OR LICENSED INFORMATION. IN ADDITION, MCH DOES NOT REPRESENT OR WARRANT (A) THE ACCURACY OR TIMELINESS OF THE INFORMATION CONTAINED IN ANY PRODUCTS AND SERVICES OR LICENSED INFORMATION, (B) THAT THE PRODUCTS AND SERVICES OR LICENSED INFORMATION WILL ACHIEVE ANY PARTICULAR RESULTS, OR (C) THAT ANY DEFECTS IN THE PRODUCTS AND SERVICES OR LICENSED INFORMATION WILL BE CORRECTABLE OR CORRECTED. THE PRODUCTS AND SERVICES AND THE LICENSED INFORMATION ARE FURNISHED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY AND ACCURACY REGARDING THE SAME IS WITH CUSTOMER.
- Limitation of Liability. IN NO EVENT WILL MCH BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) INCURRED BY CUSTOMER OR ANY OTHER PARTY, WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT, BREACH OF CONTRACT OR OTHERWISE, EVEN IF MCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON MCH, THEN CUSTOMER AGREES THAT MCH’S MAXIMUM TOTAL LIABILITY TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES OR THE LICENSED INFORMATION UNDER THE AGREEMENT. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT MCH HAS SET ITS PRICES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND OTHER TERMS AND CONDITIONS SPECIFIED HEREIN, WHICH ALLOCATES THE RISK BETWEEN MCH AND CUSTOMER AND FORM A BASIS OF THIS BARGAIN BETWEEN THE PARTIES.
- Indemnification. MCH shall indemnify, defend, and hold harmless Customer and its officers, employees, and agents against and from all losses, expenses, damages, and costs, including, without limitation, reasonable attorneys’ fees, that may at any time be incurred by any of them for breach of any of MCH’s representations and warranties set forth in this Agreement, provided that: (a) Customer shall have promptly notified MCH (60 days) in writing of such claim, and (b) MCH shall have control of such defense and any settlement thereof. Any of the Customer parties shall have the right, at its own expense, to participate in the defense of any such claim through counsel of its own choosing, and shall in any event reasonably cooperate with MCH in the defense of such claim. If infringement is held to exist, MCH shall, at its own expense and at its option, either: (i) supply to Customers revisions to the infringing material so as to make it non-infringing, or (ii) procure for Customer, at no additional expense, the right to continue to reproduce and redistribute the infringing material as permitted by this Agreement. In the event the foregoing is not reasonable, Customer may immediately cancel this agreement without penalty or additional payment.Additionally, customer will indemnify, defend, and hold MCH, including its affiliates, directors, officers, employees, agents, successors and assigns, harmless from and against any and all claims, actions, causes of action, orders, arbitrations, proceedings, losses, damages, liabilities, judgments, and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising, directly or indirectly, from or in connection with: (a) any use of the Products or Services or any of the content or information contained therein or provided therewith by Customer or any of its affiliates or agents; (b) any breach of the Agreement by Customer or any of its affiliates or agents; (c) violation of any laws or the rights of another person by Customer or any of its affiliates or agents; or (d) any negligent or intentional acts or omissions by Customer or any of its affiliates or agents. In addition, in the event that MCH seeks injunctive relief or any other remedy from a court as a result of the breach or threatened breach of this Agreement by Customer or any of its affiliates or agents, then, if successful, MCH shall be entitled to recover from Customer the costs and expenses of obtaining that relief or remedy, including reasonable attorneys’ fees and expenses.
- Force Majeure. Notwithstanding anything herein to the contrary, MCH will not be liable for delays in performance or in delivery of its obligations under the Agreement to the extent that such delays are due to either: (a) causes beyond MCH’s reasonable control; (b) acts of God, acts of civil or military authority, embargo, currency restrictions, fire, strikes, accidents, floods, epidemics, quarantine restrictions, war, riot, delays, non-availability of transportation; or (c) inability to obtain necessary labor, materials, components or facilities through regular channels due to causes beyond its reasonable control. Any delay occasioned thereby will not be considered a breach of this Agreement.
- Termination. MCH may elect to terminate the Agreement prior to its expiration upon written notice in the event of a material breach thereof by Customer. In addition, Customer agrees that if Customer acquires or is acquired by a competitor of MCH that MCH may terminate the Agreement by giving thirty (30) days notice to Customer and making a pro-rata refund of any prepaid fees.
- Mediation and Arbitration. If the parties are unable to resolve any dispute, they shall participate in a minimum of one non-binding mediation conference in the Kansas City, Missouri metropolitan area with a mutually acceptable independent mediator whose fees shall be paid equally by the parties. Each party shall designate an executive officer having authority to resolve the dispute to participate in the mediation conference. If the parties are unable to resolve the dispute within thirty (30) days after the date of mediation (or the refusal of a party to participate in mediation), either party may submit the dispute to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be held in the Kansas City, Missouri metropolitan area. Each party shall pay one-half of the costs of such arbitration; provided, however, that the arbitrator shall have the authority to assess all of such costs against any party found not to have participated in the mediation process in good faith.
- Miscellaneous. These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the MCH unless made in writing and signed on its behalf by a duly authorized representative of MCH. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these Terms and Conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to the Agreement by MCH’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. If any provision of the Agreement or the application thereof to any person or circumstance is invalid or unenforceable to any extent, the remainder of the Agreement and the application of such provision to other persons or circumstances will not be affected thereby and will be enforced to the greatest extent permitted by law. This Agreement is governed by and will be construed in accordance with the laws of the State of Missouri (without application of principles of conflicts of law). All Section titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context of this Agreement. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
- Use of Email Addresses. Customer will comply with the CAN-SPAM Act of 2003 (“CAN-SPAM Act”), including, but not limited to, the provisions for commercial email messages. These provisions require the Customer to include a clear and conspicuous notice that the message is an advertisement or solicitation, provide the recipient with the ability to opt-out of receiving future solicitation emails from the Customer, and provide a valid physical postal address. Customer will process such opt-out requests as provided by the CAN-SPAM Act or applicable state law, whichever is stricter.
- MCH will warrant, protect, and hold harmless any actions against Customer based on complaints that provided emails were in violation of trademark, patent, copyright materials, or gathered in a non CAN-SPAM compliant manner.
- Customer will hold MCH harmless if they have withheld any opt-out information that resulted in actions against the Customer by an email recipient or government agency.
- Cancellation of Orders. Customer will be subject to cancellation fees if any order is canceled.