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STEPHENS-USER TERMS AND CONDITIONS
Therefore, in order to continue with the online ordering process, User agrees to the following terms and conditions below (this "Agreement"): 1. GE Money Marketing Toolkit and Marketing Services. a. Access to GE Money Marketing Toolkit; Advertising Content Delivery. Stephens shall provide User with access to the GE Money Marketing Toolkit dedicated on-line computer system (hereinafter referred to as the "Marketing Toolkit"), through the Internet and other means of third-party data communications, which will allow User to upload its own electronic image files and develop its own custom-designed advertising content. Stephens will cause the Marketing Toolkit to be maintained to provide twenty-four (24) hour per day, seven (7) day a week access, service, and ordering capabilities for User, subject to certain limits below. Stephens will also cause the custom advertising and other marketing materials to be printed and shipped out once these materials are finalized and approved by User on the Marketing Toolkit. Pricing for each order of advertising and marketing materials for User will be determined on the Marketing Toolkit depending on the type and volume of advertising materials that User designs and requests on the system. b. Rights and Responsibilities; Representations and Warranties. (1) Payment. User understands and agrees that it is responsible to pay for the advertising services and printed materials it designs and orders on the Marketing Toolkit and that such payment is due through the use of a User credit card or debit card at the time that the User completes its request and "checks out" from the system. If, for whatever reason, after completing the transaction ordered on the Marketing Toolkit whereby Stephens incurs production or other costs, User's credit card or debit card charges are rejected, then User is responsible for paying the outstanding amount due within ten (10) days of such rejection. (2) Artwork. Stephens represents and User understands that the optimal size, file type, and resolution of artwork that User should upload to the Marketing Toolkit are either Encapsulated PostScript ("EPS") or Tagged Image ("TIFF") file formats having a minimum resolution of 300 dots per inch. Stephens is not responsible for any damage that may arise from User uploading its data to the Marketing Toolkit whereby User's data is lost, corrupted, or is otherwise damaged or made unavailable for use. (3) User's Customer Files. Through the use of the Marketing Toolkit, User may upload its customer list(s) to use in conjunction with designing, producing, and arranging for the production or mailing or both of User's advertisements and marketing materials. User represents, understands, and agrees that it is responsible for the precision, accuracy, and integrity of its own data and that Stephens makes no warranties or guaranties as to that data. If User's file(s) containing its customer list(s) are corrupted or otherwise unusable, Stephens may provide additional data processing services to attempt to change or re-format such file to a usable format with the Marketing Toolkit at an additional fee that User authorizes and pre-approves. Stephens will make a "best efforts" attempt at such changes or re-formatting; however, Stephens makes no warranties or guaranties as to the success of its efforts or the integrity, precision, or accuracy of the changed or re-formatted data. Furthermore, Stephens makes no representations, warranties, or guarantees as to customer responses to User's mailings. (4) Third Party Prospects and Other Data; Confidentiality. Through the use of the Marketing Toolkit, User may purchase third party produced prospect lists or other marketing data from vendors such as GE Money, ACCUData, and others which may be available in the future (collectively, such lists and data referred to as the "Third Party Data") to use in conjunction with designing, producing, and arranging for the mailing of User's advertisements and marketing materials. User represents, understands, and agrees and Stephens makes no warranties or guaranties as to the precision, accuracy, and integrity of the Third Party Data. Furthermore, User understands that certain Third Party Data is confidential information that is subject to a non-disclosure requirement prior to its use in direct mailing activities. Accordingly, User agrees to execute, be bound by, and subject to any and all relevant non-disclosure agreement(s) relating to such Third Party Data provided by the vendor(s) who supplied such data. User agrees that Stephens is not responsible or liable in any way for User's breach of such non-disclosure agreement(s) or misuse of the Third Party Data. If User does breach such agreement(s) of misuses such data or both, and Stephens incurs any damages, costs, legal claims, or liabilities from such breach or misuse, User agrees to indemnify and hold Stephens harmless for any expenses or loss attributable to such damages, costs, legal claims, or liabilities. Furthermore, Stephens makes no representations, warranties, or guarantees as to customer responses to User's mailings. (5) Advertising Copy Proofreading. User understands and agrees that it is User's sole responsibility to review the images it creates on the Marketing Toolkit for precision and accuracy for final proofreading before placing its order for printed advertising and marketing materials, including but not limited to spelling and grammar of the text; verifying accuracy for customer name and address fields; overall formatting of the document for spaces and line positioning; number, resolution, and quality of the images that User uploads to any template on the Marketing Toolkit to be reproduced; precision, accuracy, and integrity of User's customer information or purchased prospect information or both; and other matters relating to font, graphics, color, etc. If User cannot resolve these issues at the time of completing and placing its order on the Marketing Toolkit, then User understands and agrees that it will call Stephens' customer service telephone line at (877) 635-5376, or send an e-mail to: support@stephensdirect.com, between the hours of 8:00 a.m. to 4:30 p.m. Eastern Standard Time, to resolve and reconcile these matters before User's order goes to production for print and delivery. Furthermore, Stephens is not liable for any errant offers that User produces, whether unintentional or otherwise, on the final advertising copy that User produces on the Marketing Toolkit. User represents, understands, and agrees that it is solely responsible for compliance with any and all federal, state, and local laws relating to retail advertising and other consumer protection laws and regulations. (6) Printing Process. Stephens represents that the printed marketing materials that User designs on the Marketing Toolkit on User's behalf will be produced using both digital format and conventional printing processes. Accordingly, Stephens makes no representation, warranty, or guarantee as to the re-production values of the color on User's advertising and marketing materials printed from the Marketing Toolkit. (7) Production and Delivery Lead Times. Stephens and its suppliers will make every effort to produce and ship all printed marketing materials from the Marketing Toolkit in a timely manner; however, Stephens makes no representations, warranties, or guarantees as to the timeliness of the delivery efforts or results of third party shippers or the United States Postal Service. Any and all orders placed on the Marketing Toolkit after 11 a.m. Eastern Standard Time on any given business day shall be considered to be placed on the next business day. A business day is defined as Monday through Friday in any week during any year, excluding all Federal holidays. (8) Marketing Toolkit Availability. Stephens intends that the Marketing Toolkit is available for User's use on a twenty-four (24) hour per day, seven (7) day a week basis. From time to time, Printable Technologies, Inc. and other vendors may cause regularly scheduled maintenance and software updates to be performed on the Marketing Toolkit which will temporarily interrupt access. User understands and agrees that it will make alternate arrangements if necessary to accommodate such maintenance and updates. To the maximum extent possible, Printable Technologies, Inc. will attempt to schedule such maintenance and updates to minimize the number and length of such interruptions. Nonetheless, User acknowledges and agrees that Stephens is not responsible for hardware, software, and data communications issues that Stephens does not cause in excess of such regularly scheduled maintenance and updates. (9) GE Money Card Acceptance Agreement. User understands and agrees that use of the Marketing Toolkit and its related website is subject to the terms and conditions of the GE Money Card Acceptance Agreement for participating dealers and merchants. 2. Use of Subcontractors. Stephens represents, and User understands and agrees, that Stephens will use third party suppliers for the production and delivery of the printed advertising and other marketing materials designed and finalized on the Marketing Toolkit. The parties understand and agree that Stephens will provide its best efforts to arrange for and provide availability of such third party suppliers for such purposes; provided, however, that Stephens shall not be held responsible any and all damages caused by errors, omissions, and delays of such suppliers. 3. Limitation on Liability; Indemnification. In consideration for Stephens' provision of Marketing Toolkit and other marketing services specified in this Agreement, User agrees to indemnify, hold harmless, and defend Stephens, its affiliates, agents, employees, successors, and assigns, from and against any and all damages, liabilities, claims, penalties, forfeitures, suits and the costs and expenses incident thereto (including costs of defense, settlement, and reasonable attorney's fees), which User may hereafter incur, become responsible for, or pay out as a result of User's use of the Marketing Toolkit not directly caused by Stephens, including but not limited to computer system failures, whether hardware or system software; application software failures or errors, whether from Printable Technologies, Inc. or other vendors; data communications availability issues pertaining to the Internet, telephone lines, or data communications switching or access hardware or components; and any and all precision, accuracy, or integrity issues with customer files, Third Party Data, other prospect files, or any other data files. User acknowledges that its access to the Marketing Toolkit is at its own risk and User assumes full responsibility and liability for any damages sustained not caused by Stephens while accessing and working on the Marketing Toolkit on behalf of itself, its employees, and its agents. 4. Further Assurances of Cooperation. The parties agree to do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered all such further acts, assignments, documents, instruments, transfers and assurances as may reasonably be requested of them in order to carry out and give effect to this Agreement. The parties acknowledge that it is to their mutual benefit to effectuate an orderly and efficient delivery of marketing services as contemplated in this Agreement. Accordingly, without in any manner limiting their rights and obligations, the parties agree to cooperate with each other in completing the terms of this Agreement. 5. Relationship of Parties. The relationship of the parties established by this Agreement shall be that of an independent contractor only, and in no event shall Stephens or any of its employees, agents or subcontractors be deemed an employee, servant or agent of User or visa-versa. In addition, the parties understand and agree that Stephens is not an employee, servant or agent of any of the vendors referred to in this agreement, including but not limited to suppliers, Printable Technologies, Inc., GE Money, ACCUData, etc. 6. Authority. The User represents and warrants to Stephens that the User who places an order on the Marketing Toolkit has full power and authority to order for and bind the User to this Agreement. 7. General Provisions. a. Applicable Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio. b. Interpretive Provisions. This Agreement is the complete and exclusive statement of the agreement between the parties, and supersedes all prior proposals, negotiations, agreements, representations and other communications, whether written, oral, express or implied, between the parties with respect to this subject matter. All exhibits referred to in and attached to this Agreement are incorporated by reference. The headings of each article, section and paragraph are for convenience of reference only and shall not be considered in interpreting or construing any term or condition of this Agreement. Words in the singular shall include the plural, and vice versa, and words in the masculine shall include the feminine or neuter or both, and visa versa, where the context so requires for a reasonable interpretation of this Agreement. All of the promises, agreements, representations and warranties made by either party are material terms of this Agreement. For purposes of construction and interpretation of this Agreement, neither party shall be deemed to be the draftsman, nor shall this Agreement be interpreted or construed in favor of or against either party. c. Partial Invalidity. If any provision of this Agreement, or its application to any person or circumstance, is held to be void, voidable or invalid to any extent, then the remainder of this Agreement, or the application of that provision to persons or circumstances other than those as to which it is held void, voidable or invalid, shall not be affected, and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. d. Amendments. This Agreement shall not be amended or modified, and no provision shall be waived, unless in writing and signed by both parties. e. Assignment. Unless otherwise provided in this Agreement, neither party may assign any of their respective rights or obligations under this contract without the express prior written consent of the other party. f. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement, and their respective heirs, beneficiaries, executors, administrators, personal legal representatives, successors, and permitted assigns. g. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the parties, and shall not be construed as vesting in any other person or entity any legal or equitable rights or interests, whether under a theory of third party beneficiary or otherwise, except as provided in subparagraph f. h. Consent to Jurisdiction. Any litigation arising out of or in any way related to this Agreement shall be instituted by the complaining party and adjudicated in the Montgomery County Common Pleas Court unless removed to federal court. If such litigation is removed to federal court, the parties agree that such litigation shall be adjudicated in the Southern District of Ohio of the federal court system. All parties to this Agreement consent to the personal jurisdiction of and venue in those courts. No party to this Agreement shall contest the personal jurisdiction of those courts over it or the venue of those courts with respect to any claims or disputes. |
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