CARD MAILER SERVICES AGREEMENT
The terms and conditions of this agreement (this “Agreement”) constitute the agreement among Triadex Print & Mail Services, a division of Print Processing Industries, LLC (“Triadex”) and the undersigned user ("You" or "you") in connection with your use of the Triadex Savings Card Program (the “Service” or “Services” as applicable herein) provided by Triadex and its fulfillment partners. For the purposes of this Agreement, if a user is not an individual, then "You" or "you" will include the user’s company, its officers, employees, members, agents, successors and assigns. This Agreement will govern all current and future insertion orders (exhibit A) between the two parties.
The following terms as used in this Agreement shall have the following meanings:
The scope, features and deliverables of the Services selected by you and agreed to by you and Triadex are set forth in the service order (the “Service Order”) agreed to by you and Triadex
You will be responsible for paying the fees and sales tax on the order as required by law. If you cancel the Service, you will be responsible for (1) reimbursement of Triadex of all out-of-pocket expenses incurred by Triadex in setting up your Savings Card Program, and (2) a cancellation fee of $200. You agree to comply with the terms and conditions set forth in the insertion order (exhibit A) regarding the procedures for creating your materials for the Services provided by Triadex.
Third Party Providers
You acknowledge and agree that Triadex in its sole discretion will be relying from time to time on third party providers in connection with certain aspects of the Services provided by Triadex, including but not limited to list rental and card production.
In addition to the Services described herein, Triadex will provide you with marketing assistance at no additional cost in connection with your mailing materials. Such assistance will include suggestions regarding formatting, presentation and advertisement copy. You will have final say over all advertisement copy and presentation materials and Triadex hereby disclaims all warranties relating to the compliance of any advertisement copy suggested by Triadex with applicable federal, state or local laws. You further acknowledge and agree that all final copy will be reviewed by your legal counsel prior to printing and mailing.
Disclaimer of Warranties
TRIADEX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRIADEX OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TRIADEX SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, DOWN TIME, FAILURE TO REALIZE SAVINGS, OR OTHER INTANGIBLE LOSSES (EVEN IF TRIADEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OF THE SERVICE; (II) UNAUTHORIZED ACCESS TO, ALTERATION OF OR DISCLOSURE OF YOUR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICE. IF, NOTWITHSTANDING ANY OF THE OTHER PROVISIONS OF THIS AGREEMENT, THERE SHALL BE ANY LIABILITY OF TRIADEX TO YOU OR ANY THIRD PARTY THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO THIS AGREEMENT, THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL NOT EXCEED TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500). THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FEES CHARGED AND/OR PAID. THE LIMITATIONS IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You agree to indemnify and hold Triadex and its subsidiaries, parent companies, affiliates, officers, agents, cobranders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by you or any third party due to or arising out of (a) any of the events described in the preceding paragraphs, (b) any information you submit through the Service; (c) any claims made by you or other advertisement copy contained in materials printed and mailed through your use of the Service, regardless of any input offered by Triadex regarding your marketing materials; (d) your use of the Service; or (e) your violation of any rights of another.
Compliance with Federal, State and Local Law
You certify that all services which you request Triadex to perform shall comply with all federal, state and local laws. You shall defend, indemnify and hold Triadex and its subsidiaries, parent companies, affiliates, officers, agents, cobranders or other partners, and employees, harmless to the extent permissible by law from any claims or liability imposed by any governmental authority resulting from performance of requested services in conformance with this agreement.
The relationship between you and Triadex is that of independent contractors, and no agency, partnership, joint venture, employee/employer or franchiser/franchisee relationship is intended or created by this Agreement.
Non-Transferable: Your right to use the Service is not transferable.
Binding Obligation; Authority: You represent and warrant that: (I) you have read and understand this Agreement and that it constitutes a valid, binding obligation, and (ii) you have full power, authority and legal capacity to enter into this Agreement and follow its obligations. If you are registering on behalf of a company or other entity, you agree that you have the authority to bind your principal or employer company. This Agreement will be binding upon and enforceable by the parties it describes and their respective officers, directors, employees, representatives, successors and assigns.
Notice: Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to you generally on the Service.
Entire Agreement: This Agreement and the Pricing Schedule constitute the entire agreement among the parties with respect to the subject matter that is described herein and therein, and supersede all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the information covered herein and therein.
Severability: If any section of this Agreement is found to be invalid or unenforceable in any jurisdiction in which it is performed, then the meaning of that section will be interpreted, to the extent feasible, in a way that renders it enforceable. If no feasible interpretation is possible, the section will be severed from the rest of this Agreement and the rest of the Agreement will remain in full force and effect.
Section Headings: The section headings are for convenience only; they form no part of this Agreement and will not affect the interpretation of this Agreement.
Non-Waiver: The failure of Triadex to enforce or require enforcement of any provisions of this Agreement will not constitute, or be construed to be, a waiver of the Agreement’s provisions, nor will it affect the right of Triadex to enforce all provisions of this Agreement thereafter.
Survival: You agree that any cause of action arising out of or related to the Service or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of this Agreement.
Attorney’s Fees: Should it become necessary to collect any amounts due under this Agreement through an attorney, you shall pay all costs incurred by or accruing to Triadex in making such collection, including a reasonable attorneys’ fee.
Choice of Law and Dispute Resolution: This Agreement shall in all respects be construed in accordance with and governed by the laws of the State of Florida or the laws of the State of your main office, or your applicable office facility, at the sole discretion of Triadex and without regard to any conflicts of laws. Any controversy involving Triadex arising from or in any way related to this Agreement or your use of the Service shall be submitted to arbitration to be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”).