Acceptance of Terms
AGREEMENT BETWEEN USER AND MAIL PROS
Postal Delivery and Handling: Mail Pros has no control over the U.S. Postal Service. When we deliver a client’s mailing to the post office it is inspected for proper preparation and if approved accepted into the mail stream. At the customer request Mail Pros will provide the client a copy (in PDF format) of the 3600-R for First Class Mail or 3602-R for Standard Mail. This document originates from the US Postal Service’s Postal One website and is often referred to as a “postage receipt” or “receipt of mailing”. Client agrees that this document shall constitute proof of delivery and that Mail Pros has completed its obligation and that Mail Pros has no further obligation or liability for the mailing. Client understands that there is always a possibility that the U.S. Postal Service will delay, damage, or lose mail. Under no circumstance will Mail Pros be held responsible for delays in delivery, damage to the mail pieces, or loss of mail after it has been accepted by the Post Office.
Quotations: Prices obtained from Mail Pros are subject to change without notice. Mail Pros reserves the right to end any special offers, incentives, or pricing at any time. In the event a product is listed or quoted at an incorrect price for any reason- Mail Pros shall have the right to refuse or cancel the order
Payment Terms: Mail Pros requires payment in full at the time the order is placed. There is a 3.5% processing fee applied to all postage payments. A $50.00 fee will be charged on all returned checks in addition to the original amount due. Additionally, you agree that should a check be returned to us – you authorize Mail Pros to charge all outstanding payments to any other form of payment (such as a credit card) that you have used with Mail Pros in the past.
Refunds: Refer to the Cancellation, Warranty, and Mailing Lists sections of this document.
Order Cancellation: Orders may be canceled by notice in writing or via e-mail. It is the client’s responsibility to confirm Mail Pros has received the order cancellation notification. For orders cancelled prior to approving the proof, the client will receive a refund or credit based on the order amount minus the cost for any work already performed and at Mail Pros’s sole discretion may include an order cancellation fee $150 or 15% of the project total whichever is greater. No refunds or company credits will be issued for orders that are cancelled after the proof has been approved and thereby giving authorization to proceed with printing. For orders that are cancelled greater than 5 days after the date the order was placed refunds will not be given instead the client will receive credit for use on a future order. Credits must be used within 1 year of issue.
Inactive Projects: Projects that have no activity for 90 days or in which the client does not respond to a request for information/direction shall be considered cancelled and will be subject to the same fees and process as detailed in paragraph number 5 – Order Cancellation.
Warranty: Mail Pros at its sole option will repair or reprint any order that contains abnormal imperfections, or where we have failed in your written instructions. Mail Pros at its sole option may elect to provide a prorated credit in lieu of a reprint if the shortage, defective or damaged portion of an order does not exceed 20% of the ordered amount. Claims for defects, damage or shortages must be made in writing and must be received by Mail Pros within 5 days of receipt or within 14 days of the mail date whichever is sooner.
Customer Changes: Customer changes represent additional work to be performed and will be billed current rates. Customer changes will delay the completion of the order.
Proofs: The client is 100% responsible for proofreading the design prior to approving the proof and thereby giving authorization to proceed with printing. This includes designs and/or artwork submitted by the client and designs and/or artwork created or modified by Mail Pros and presented to the client for review and approval. The client is also 100% responsible for ensuring the design meets postal regulations and any additional postage required as a result of the mail piece design.
Production Schedule and Turnaround Time: Deliver schedules, turnaround times and other similar terms used by Mail Pros merely reflect the average completion time of similar orders and will be affected by run lengths, special customer requirements, workloads, holidays, or equipment breakdowns and is not contractual. It is the client’s responsibility to plan time sensitive mailings far enough in advance to accommodate any delays that may occur. Mail Pros will not give refunds and/or credit as a result of unforeseen delays that affect the project schedule. For Expedited Projects if Mail Pros does not print or ship the project on schedule – the client will be entitled to a refund of the expedite fees paid but the project may not be cancelled.
Postage: Quotations do not include postage. They do however include a postage estimate to be used for budgetary purposes. Mail Pros will notify the customer in writing or by e-mail of the required postage as soon as this amount is known and will notify the customer of the date when the postage is needed in order to complete the mailing prior to the agreed upon mailing date. Payment of postage is required by 12pm Arizona time 3 business days in advance on all orders and is the responsibility of the customer to remit payment on time and confirm that Mail Pros has received it. Mail Pros at its sole discretion reserves the right to hold mailings for which sufficient postage has not been paid or until by Mail Pros’s sole determination postage payment has cleared.
Acceptance of Order: Mail Pros may refuse at any time to mail any copy, photographs or illustrations of any kind that in Mail Pros’s sole judgment is an invasion of privacy, is degrading, libelous, unlawful, profane, obscene, pornographic, tends to ridicule or embarrass, or is in bad taste, or which in the mailer’s sole judgment is an infringement on a trademark, or trade name, or service mark, or copyright belonging to others. The customer will defend and hold Mail Pros harmless in any suit or court action brought against the mailer by others for alleged damages, costs, expenses (including reasonable attorney’s fees), liabilities or losses resulting from circumstances where Mail Pros, acting as the customer’s agent, uses copy, photographs, or illustrations that are believed by others to be degrading, libelous or harmful to their reputations, images, or standing in the community or which in Mail Pros’s sole judgment is an infringement on a trademark, or trade name, or service mark, or copyright belonging to others, or in a suit or court action brought against Mail Pros for actions of the customer’s employees which may occur as a result of any mailing.
Content Submitted or Made Available for Inclusion on the Service: You are solely responsible for your use of Content in combination with any other images, graphics, text or other materials you incorporate into your Products. You agree that you will not include any text, image, design, trademark, service mark, or any copyrighted work of any third party in your Products unless you have obtained the appropriate authorizations from the owners. You warrant that your Products do not infringe upon any rights of any third party, including copyright, trademark, right of publicity or privacy, and will not libel or defame any third party, and that you have all required rights or permissions necessary to incorporate third party material into your Products. By placing an order on this Site, you warrant that you have all necessary permission, right and authority to place the order and you authorize the Company to produce the Products on your behalf.
Copyright Policy: By using the services of the Company, you warrant that the subject matter to be printed is not copyrighted by a third party. You also recognize that because subject matter does not have to bear a copyright notice in order to be protected by copyright law, absence of such notice does not necessarily assure a right to reproduce. You further warrant that no copyright notice has been removed from any material used in preparing the subject matter for reproduction. To support these warranties, you agree to indemnify and hold the Company, harmless for all liability, damages, and attorney fees that may be incurred in any legal action connected with copyright infringement involving the work being printed.
Color Matching: Because of the differences in equipment, paper, inks, and other conditions a variance between electronic proofs and the completed job is expected, unavoidable, and shall constitute acceptable delivery. Mail Pros will make every effort to produce a reasonable representation based on materials supplied by the client and the proof produced by Mail Pros, however, Mail Pros does not guarantee color matching.
Shipping: Mail Pros has no control over the U.S. Postal Service, United Parcel Service or any other common carrier’s delivery schedule and cannot guarantee when mail or shipments deposited with or released to these carriers will be delivered.
Inserting Sequence: Effort will be made to insert material in the sequence and facing the direction the customer requests, but quoted prices assume the most advantageous production speeds. Specified sequence or facing may result in additional charges being billed.
Errors in Mailing: Damages shall be limited to the value of the work performed excluding the cost of postage. At the sole discretion of Mail Pros we will either refund the services cost of the project (excluding postage) or prepare a corrected mailing. For corrected mailings the client is responsible for the postage due to mail the corrected mailing. In no case is Mail Pros liable for loss of business; incidental or consequential damages; or costs in excess of billing for services related to the specific job.
Storage of Materials: Mail Pros will store materials that we print at no charge as long as the client sends out a mailing at least every 90 days. If 90 days pass and the client has not sent out a mailing, picked-up the material, paid to have the material shipped to them, or authorized Mail Pros to dispose of the material- they will be sent a storage invoice in the amount of $5/1000 pieces stored per month. If the client does not pay the storage invoice within 15 days of receipt the materials will be disposed of. If the client does pick-up the material, pay to have the material shipped to them, or authorize Mail Pros to dispose of the material, any prepaid mailing service fees will be kept in lieu of storage fees. As prepared mailings take up considerably more space then materials stored in boxes – prepared are charged a premium storage rate of $5/1000 pieces per week starting 2 weeks after the mailing was prepared until the mailing is mailed out.
20. Printing and Mailing Quantities: Printing and mailing services are provided using high speed automated production equipment. As typical with most production processes – some scrap is normal and expected. Because of this deliver or mailing of +/- 5% of ordered quantity shall constitute satisfactory completion of the order.
Response to Mailings: Mail Pros does not guarantee response rates to mailings. Any response rates discussed by Mail Pros, its Employees, contained in its marketing material or on its website are only projections of potential response rates. Absolutely no refunds will be given based on low or no response rates.
List Rental Terms
Mailing Lists: The industry average for returns on non-deliverable mail (even after list processing (CASS, PAVE, & NCOA) is between 10% and 15%. If the list you use for your mailing was purchased/rented through Mail Pros we will assume responsibility only for amounts above 10% on consumer lists and 15% on business lists and only if the list has been used within 60 days of purchase / rental. Mail Pros will give a credit of $.40 towards future services for any amount returned over 10% on consumer lists and over 15% on business lists. To obtain such credit the client must return all of the returned mail pieces to Mail Pros prior to the issuance of any credit. Credits must be used within 1 year of issue. Unless otherwise specified in writing in advance, all rented mailing lists are provided on a one-time use basis.
License: The MailProsOnline.com web site and services are offered and made available by Mail Pros a division of DiCap Group, Inc. (known herein as Mail Pros). Through the MailProsOnline.com web site customers may order lists containing names, addresses, and phone numbers for consumers or businesses meeting the criteria selected by the customer (“List”). You (“Customer”) must provide the information requested below and agree to the terms and conditions of this License Agreement (“Agreement”) before ordering a List. Mail Pros grants Customer, on the terms and conditions set forth herein, a limited, nonexclusive, nontransferable license to use the List obtained using the MailProsOnline.com web site. Each List obtained may be used for the number of times specified and permitted by the Mail Pros website and must be used within 30 days of delivery of the List to the Member area of the MailProsOnline.com web site (“Delivery”). Experian Marketing Solutions, Inc. (“Experian”) provides Mail Pros with access to its proprietary data and certain web site hosting services, enabling this Mail Pros service. Experian shall be a third party beneficiary to this Agreement.
Delivery: Lists are delivered electronically to a secure area of the MailProsOnline.com web site. Mail Pros will notify Customer by email when Delivery has been made and will forward the list to customer via email. Customer acknowledges that certain mechanical or software failures may render the Internet or email unavailable for periods of time without warning or notice and Mail Pros assumes no responsibility of any kind for any delays caused by such failures.
Payment: Payment is by credit card. Customer must enter their credit card information for each List purchase. Customer represents and warrants that it is an authorized user of the credit card information provided for each order submitted. Mail Pros reserves the right to reject any order placed by Customer if the credit card information provided cannot be processed for any reason.
Refunds: Mail Pros WILL NOT issue refunds for mailing lists purchased through the Site. The mailing list purchased is provided to the customer and based on the specific criteria supplied by the customer. When you purchase a mailing list, you are bound to the list rental agreement. Termination of the agreement will only be authorized if the Company is at fault. This is to protect the interests of the Company and other customers of the Company.
Use and Restrictions:
a) One Time Use, Permitted Uses: Unless permitted with the appropriate upcharge for two-time and/or multiple (three plus times) use through the Mail Pros website, Customer is licensed to use, and certifies that it will use, the List provided by Mail Pros for the number of uses permitted and only for one of the following purposes: i) direct mail solicitations, ii) conducting telephone solicitations, iii) conducting telephone surveys, or (iv) direct mail surveys. This shall not, however, prevent Customer’s use of the List for Customer’s internal analysis or for previous mail suppression. Seed names may be included to detect unauthorized use.
b) Compliance with Guidelines and Laws: Customer acknowledges that different states and jurisdictions may have guidelines and laws affecting its use of the List and any information or data provided therein. It is Customer’s responsibility to learn of such guidelines and laws, and comply with them. Mail Pros, its data providers and affiliates, disclaim all responsibility for Customer’s compliance with such guidelines and laws including any obligation to inform Customer about any restrictions on use of the List. Customer agrees that it will use the List provided under this Agreement in accordance with all Federal, state and local laws, relevant Direct Marketing Association Guidelines, and in a manner which gives due consideration to matters concerning privacy, confidentiality, good taste, and other issues to which individual and business consumers may be sensitive. Customer will not in any direct mail solicitation, telephone solicitation or survey refer to any selection criteria or any presumed knowledge about the recipient, nor will Customer disclose the source of the recipient’s name, address, or any other information. The List may not be merged or incorporated with any other file without the express written consent of Experian. The List, or any information or data provided therein, may not be used to enhance a file or list owned by any third party, to develop any list, enhancement or product, or to prepare, publish, clean or maintain any directory or look-up service.
c) Geographical Limitation: Customer represents and warrants that it will only use the List within the United States and its territories and will not use or transfer the List, or any information derived from the List, in whole or in part, outside the United States or its territories for any purpose.
d) Resale Prohibited: Customer represents and warrants that it will not resell, broker, or otherwise disclose the List to any third party, in whole or in part, for any purpose whatsoever. Customer agrees that it will not copy or otherwise reproduce the List, information or data provided except for back up or security purposes. Under no circumstances will Customer attempt, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Mail Pros in preparing the List.
e) Audit: Customer will maintain current, accurate and complete books and records relating to its use of the List for a period at least twelve (12) months after each marketing communication. In addition to financial detail, Customer shall maintain a file of the latest twelve (12) months of communications, to include sample mail pieces, telemarketing scripts, ad copy or other communications which Customer has used, and a list of each state to which the marketing communication has been made using the Lists. Mail Pros or Experian, or any representative either designates, will have the right to examine and copy or make extracts from all such books and records and any source documents used in preparation thereof, at any time during normal business hours, provided Mail Pros or Experian gives Customer written notice at least three (3) business days prior to any such examination.
f) FCRA: Customer understands that the information and data provided in the List has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act (“FCRA”), 15 USC § 1681a. Customer agrees that it shall not use any information or data from any List as a factor in establishing any consumer’s eligibility for (i) credit or insurance used primarily for personal, family or household purposes; (ii) employment purposes; or (iii) other purposes authorized under Section 604 of the FCRA, 15 USC § 1681b or any similar statute.
DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY AGREES THAT USE OF THE LIST IS AT CUSTOMER’S SOLE RISK. THE LIST IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MAIL PROS AND EXPERIAN EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY. MAIL PROS AND EXPERAIN MAKE NO WARRANTY THAT THE LIST WILL MEET YOUR REQUIREMENTS, OR THAT DELIVERY OF THE LIST WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES MAIL PROS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LIST, THE ACCURACY OR RELIABILITY OF ANY DATA, OR THAT DEFECTS IN THE LIST WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM MAIL PROS OR EXPERIAN, OR THROUGH THE SERVICES PROVIDED, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Customer acknowledges that certain laws, rules and regulations restrict telemarketing activities, including those that permit consumers to give notice that they do not wish to receive sales solicitation calls. Due to the varying and changing nature of such laws, rules and regulations, Mail Pros makes no warranty that the names or telephone numbers of such individuals have been identified on or deleted from the List provided.
Limitation of Remedies: Mail Pros and/or Experian’s sole liability hereunder regardless of the form of action, will be the reperformance of the services or refunding of any fees Customer has paid for the List, as Mail Pros or Experian may elect.
Limitation of Liability:
NEITHER MAIL PROS NOR EXPERIAN SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE LIST, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF MAIL PROS OR EXPERIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL MAIL PROS OR EXPERIAN, JOINTLY OR SEVERALLY, BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS RECEIVED FROM CUSTOMER.
Indemnification: Customer shall indemnify, defend and hold Mail Pros and Experian harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including attorneys’ fees) arising out or resulting from Customer’s use of the List.
Ownership: As between Customer and Mail Pros, the List will continue to be the exclusive property of Mail Pros,. This transaction shall not be deemed to convey any right, title or interest, including patent, copyright or other proprietary right, in or to such List or any information or data therein.
This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of California, which are intended to supersede any choice of laws or rules which might otherwise be applicable. Both parties consent to the jurisdiction of the courts of California, whether Federal, state, or local with respect to any actions that arise out of or relate to this Agreement. The person accepting the terms and conditions of this Agreement represents and warrants that he or she has full authority to accept, and hereby does accept, the terms and conditions of the License Agreement on behalf of the individual and/or entity identified as customer.