TERMS AND CONDITIONS
Please pay from this invoice. For proper credit, please send the remittance form with your payment. A finance charge of 1.5%, per month shall be added to the balance due if the balance is not paid within thirty (30) days from the invoice date.
The Customer acknowledges and agrees that the Order Confirmation and these Terms and Conditions constitute the entire agreement between the parties hereto and supersede all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made by either party which is not embodied in these Terms and Conditions or the Order Confirmation, and KB Synergy shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. Furthermore, handwritten information on the Order Confirmation will NOT be deemed to be a part of the agreement between Customer and KB Synergy. All products supplied in conjunction with signed agreements are good for up to 12 months (1 year) after the date executed unless otherwise specified on the order confirmation. Note: All unused data (records) after the said expiration period will not be accessible.
Use of Data and Lists
Customer warrants and guarantees he/she/it is a merchant as understood in the California Commercial Code, that the list(s) rented hereunder is/are to be used for a one-time use only, and that no record of the names, addresses, etc. will be retained or duplicated. Additionally, Customer is strictly prohibited from using information about this rented list as part of Customer’s telephonic presentation or printed mail piece. NO EXCEPTIONS.
Customer may rent the list rented hereunder for confidential use by Customer for a period not exceeding six (6) months from the date of rental to the Customer. Except with KB Synergy’s prior written consent, Customer shall not: re-rent the list or otherwise permit any use of the list by or for the benefit of any party other than Customer; publish, distribute or permit disclosure of the list, other than to employees and agents of the Customer for use in the Customer’s business; use or permit use of the list for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third party; use or permit of the list for the generation of any statistical information which is sold, rented, published, furnished or in any manner provided to a third party; use or permit of the list to prepare any comparison to other information databases, which is sold, rented, published, furnished or in any manner provided to a third party; or use or permit of the list in connection with individual credit, employment or insurance applications.
All lists and other goods and services provided by KB Synergy are provided ‘as is’ and KB Synergy expressly disclaims all other representations and warranties, express or implied, relating to any such goods or services, including their fitness for a particular purpose, their quality, their security, their merchantability or their non-infringement. Due to the fact that our products can be copied easily, no order will be returned or accepted for credit, or otherwise, unless first approved by KB Synergy, Inc. in writing
No Legal Advice; Compliance With Applicable Law
It is acknowledged that the Customer is not relying upon KB Synergy with respect to any legal advice in connection with the use of data or lists. Customer agrees and warrants that all data which Customer receives from KB Synergy, or any related subsidiary corporation, shall be used only in strict compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances, including but not limited to those concerning privacy, telephone solicitation, e-mail solicitation, fax broadcasts and direct marketing. Customer understands that any person violating such laws may be subject to civil and criminal penalties. Customer acknowledges that it is Customer’s sole responsibility to determine the applicability of any such laws, rules, regulations and ordinances. Without in any way limiting the generality of the foregoing, KB Synergy assumes no responsibility or liability for determining whether phone numbers on its lists may be registered under federal and/or state “do not call” laws or other laws governing telemarketers, and Customer shall be fully responsible for compliance therewith in connection with the use of lists rented hereunder. Customer represents and warrants to KB Synergy that any and all actions taken by Customer pursuant to this Agreement shall be in compliance with the provisions of all applicable laws and regulations and that KB Synergy shall have no liability whatsoever for any actions done or performed, or caused to be done or performed by Customer, and Customer agrees to indemnify and hold KB Synergy harmless therefrom.
Limitations of Liability
Customer agrees, understands, and expressly acknowledges that when KB Synergy rents a list to any customer, it neither assumes nor accepts any responsibility of any kind for defects, deficiencies, mistakes, ambiguities, or inaccuracies of any kind or effect with respect to the list rented herein. Customer agrees, understands, and expressly acknowledges that while KB Synergy believes this information to be accurate, it does not, except as otherwise provided in the Order Confirmation, warrant or guarantee any degree of accuracy of the list rented, nor the outcome or results of any mailing or promotion or any other undertaking of the Customer, and KB Synergy shall not be held liable in any manner with respect thereto or otherwise. In all events, any liability hereunder of KB Synergy and its representatives shall be limited to the amount paid by Customer for the applicable list. KB Synergy shall not be liable for indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business, loss of profits or investment or the like) whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if KB Synergy or its representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. The limitations of damages set forth herein are fundamental elements of the basis of the bargain between KB Synergy and Customer, and Customer acknowledges and agrees that KB Synergy would not have been able to have provided its goods and services without such limitations.
KB Synergy, Inc. shall not be liable to Customer, or to anyone who may claim any right, due to KB Synergy’s relationship with Customer, for any acts or omissions in the performance of said services on the part of KB Synergy or on the part of KB Synergy’s agents, officers, directors or employees or assigns which result from the delivery of Services made to Customer by KB Synergy and its agents, officers, directors, employees or assigns, unless said acts or omissions of KB Synergy or its agents, officers, directors, employees or assigns are due to their gross or willful misconduct.
KB Synergy, will not accept any returns or make any reimbursements. NO EXCEPTIONS. All orders received from the Customer by KB Synergy required KB Synergy to create a custom order for the Customer. Therefore, Customer is responsible for the payment of this custom order; and this financial responsibility shall not be released due to the Customer rejecting said order, refusing to accept shipment, “stop payment” on their check, or changing the nature of the order, etc.
Customer agrees to reimburse KB Synergy, for all expenses, including reasonable attorney’s fees, incurred by KB Synergy, to enforce this agreement and/or collect payments due hereunder. No modifications of this agreement may be made unless they are in writing and signed by the party to be charged. Time is expressly declared to be the essence of this agreement, and it is specifically agreed that no waiver of any breach or default by the Customer shall be deemed a waiver of any breach or default thereafter occurring. This agreement shall be governed by and construed in accordance with the internal laws of the State of California without regard to its conflict of law rules. Customer agrees that any dispute hereunder shall be exclusively heard in the state and federal courts located in Los Angeles, California, and further agrees that said courts are a convenient and appropriate forum
Arbitration, Class Action Waiver and Governing Law
Any dispute, controversy or claim arising out of or relating in any way to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach hereof, shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. In connection therewith: (a) In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach. (b) This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration. (c) THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO HAVE DISPUTES LITIGATED IN A COURT, TO A TRIAL BY JURY, AND ANY RIGHTS THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION IN ANY DISPUTE RELATING TO OR ARISING FROM THIS AGREEMENT. (d) The arbitration shall be conducted by one arbitrator. If the Parties are not able to agree upon the selection of an arbitrator, within twenty (20) days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association in accordance with the terms of this Agreement. (e) The arbitrator shall have ten (10) years of experience in contract dispute resolution and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration. (f) The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association. (g) The arbitration shall be conducted in Ventura County, California. (h) The laws of the State of California shall be applied in any arbitration proceedings (without regard to principles of conflict of laws) which shall be applied by the arbitrator in rendering a final decision. (i) It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award. (j) Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. (k) The Parties shall be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than one thousand (1,000) pages of documents and to take three (3) depositions not to exceed eight (8) hours for each such deposition. Any Party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition. In addition to the foregoing, any Party shall be entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable to testify at the hearing to preserve such witness’ testimony for the arbitration hearing. (l) The Parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness ten (10) days before the arbitration hearing. (m) The arbitrator shall have no authority to award punitive, consequential, special or indirect damages. The arbitrator shall not be entitled to issue injunctive and other equitable relief. The arbitrators shall award interest from the time of the breach to the time of award at the prejudgment interest rate under the California Civil Code. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to these arbitration provisions by bringing suit in any court of competent jurisdiction. These arbitration provisions shall survive the termination or cancellation of this Agreement. (n) Each party shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
No modifications of this Agreement may be made unless they are in writing and hand signed by a duly authorized officer of the party to be charged. Time is expressly declared to be the essence hereof, and it is specifically agreed that no waiver of any breach or default by Customer shall be deemed a waiver of any breach or default thereafter occurring.
ACCEPTANCE OF THIS ORDER CONSTITUTES
ACCEPTANCE OF THESE TERMS AND CONDITIONS
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