ExpressCounts
Terms of Use
lease feel free to browse the site. You may download material displayed on the site provided you keep intact all copyright, trademark, and other proprietary notices. You may not; however, copy, reproduce, republish, upload, post, transmit, or distribute in any way the contents of this site including the text, images, audio, and video for public or commercial purposes, without written permission from ExpressCounts.com.
THEREFORE, in consideration of the agreements and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. You should assume that everything you see or read on the site is protected by copyright unless otherwise stated and may only be used according to these Terms of Use. ExpressCounts.com does not warrant or represent that your use of materials displayed on the site will not infringe rights of third parties not owned by or affiliated with ExpressCounts.com. Images are either the property of, or used with permission by, ExpressCounts.com. The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms of Use. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
2. ExpressCounts.com uses reasonable efforts to include accurate and up-to-date information on the site. However, ExpressCounts.com makes no warranties or representations as to the accuracy of the information. ExpressCounts.com assumes no liability or responsibility for any errors or omissions in the contents of this site.
3. Furthermore, your use of and browsing in the site is at your risk. Neither ExpressCounts.com nor any other party involved in creating, producing, or delivering the site is liable for any direct, indirect, incidental, consequential, or punitive damages arising out of your access to, or use of, the site. Without limiting the foregoing, everything on the site is provided to you "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. ExpressCounts.com also assumes no responsibility and shall not be liable for any damages to, or viruses that may infect your computer equipment or other property on account of your access to, use of, or browsing in the site or you’re downloading of any materials, data, text, images, video, or audio from the site.
4. Any communication or material you transmit to the site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like, is and will be treated as, non-confidential and non-proprietary. Anything you transmit or post may be used by ExpressCounts.com or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, ExpressCounts.com is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the site for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information.
5. The trademarks and logos displayed on the site are trademarks of ExpressCounts.com. Nothing contained on the site should be construed as granting, by implication, estoppal, or otherwise, any license or right to use any trademark displayed on the site without the written permission of ExpressCounts.com or such third party that may own the trademarks displayed on the site. Regarding use of the trademarks, see Intellectual Property Rights.
ExpressCounts.com has not reviewed all of the sites linked to the site and is not responsible for the contents of any off site pages or any other sites linked to the site. Your linking to any other offsite pages or other sites is at your own risk.
6. The site may contain links to other Web sites operated by third parties other than ExpressCounts.com. Such links are provided for your convenience only. ExpressCounts.com does not control such Web sites and is not responsible for their content. The fact that the site contains links to other sites does not mean that ExpressCounts.com approves of, endorses, or recommends those sites, nor does it imply any association with their operators. ExpressCounts.com disclaims all warranties, express or implied, as to the accuracy, legality, reliability, or validity of any content on any other site and disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from any third party Web sites or content therein directly or indirectly accessed through links in the site.
7. Reservation of Rights. ExpressCounts.com reserves the right of final Acceptance of the Work Order Confirmation; the client understands that an officer of ExpressCounts.com is the only binding authority with the client in this Agreement. Should it be deemed necessary, said officer shall have the right to void this Agreement upon its inception or at any time it is felt that this Agreement is default.
8. Confidential Information. Means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”) which is marked “confidential” or “proprietary”, including oral information, which is designated confidential at the time of disclosure. Confidential Information does not include any information that the Receiving Party can demonstrate; (I) was known to it prior to its disclosure by the Disclosing Party; (II) is or becomes publicly known through no wrongful act of the Receiving Party; (III) has been rightfully received from a third party authorized to make such disclosure without restriction; (IV) is independently developed by the Receiving Party; (V) has been approved for release by the Disclosing Party’s prior written authorization; or (VI) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
Each party hereby agrees that it shall not disclose any Confidential Information received from the other party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, partners, principals, and employees who need access to such Confidential Information in order to affect the intent of this Agreement.
9. Default. Means for either party; (a) failure to perform any of its material obligations under this Agreement and failure to cure such default within thirty (30) days following notice thereof; (b) becoming or being declared insolvent or bankrupt or be the subject of any proceedings related to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it; (c) making an assignment for the benefit of its creditors, or entering into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (d) for Client to fail to pay any sum of money due hereunder.
10. Intellectual Property. Means any intellectual property or proprietary rights, including, but not limited to, copyright rights (including rights in audiovisual works), moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.
11. System. Includes all source and object code, including third party software, internal documentation used to provide the service to Client, ExpressCounts.com content and documentation. System software includes the database schema and stored procedures, HTML, XML, and ASP scripts and any other object code in any computer language used for the creation, management of or delivery of the system.
12. Compliance with Laws. Each party shall be responsible for compliance with all applicable laws and government regulations in the process of delivering and/or using the system.
THEREFORE, in consideration of the agreements and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. You should assume that everything you see or read on the site is protected by copyright unless otherwise stated and may only be used according to these Terms of Use. ExpressCounts.com does not warrant or represent that your use of materials displayed on the site will not infringe rights of third parties not owned by or affiliated with ExpressCounts.com. Images are either the property of, or used with permission by, ExpressCounts.com. The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms of Use. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
2. ExpressCounts.com uses reasonable efforts to include accurate and up-to-date information on the site. However, ExpressCounts.com makes no warranties or representations as to the accuracy of the information. ExpressCounts.com assumes no liability or responsibility for any errors or omissions in the contents of this site.
3. Furthermore, your use of and browsing in the site is at your risk. Neither ExpressCounts.com nor any other party involved in creating, producing, or delivering the site is liable for any direct, indirect, incidental, consequential, or punitive damages arising out of your access to, or use of, the site. Without limiting the foregoing, everything on the site is provided to you "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. ExpressCounts.com also assumes no responsibility and shall not be liable for any damages to, or viruses that may infect your computer equipment or other property on account of your access to, use of, or browsing in the site or you’re downloading of any materials, data, text, images, video, or audio from the site.
4. Any communication or material you transmit to the site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like, is and will be treated as, non-confidential and non-proprietary. Anything you transmit or post may be used by ExpressCounts.com or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, ExpressCounts.com is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the site for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information.
5. The trademarks and logos displayed on the site are trademarks of ExpressCounts.com. Nothing contained on the site should be construed as granting, by implication, estoppal, or otherwise, any license or right to use any trademark displayed on the site without the written permission of ExpressCounts.com or such third party that may own the trademarks displayed on the site. Regarding use of the trademarks, see Intellectual Property Rights.
ExpressCounts.com has not reviewed all of the sites linked to the site and is not responsible for the contents of any off site pages or any other sites linked to the site. Your linking to any other offsite pages or other sites is at your own risk.
6. The site may contain links to other Web sites operated by third parties other than ExpressCounts.com. Such links are provided for your convenience only. ExpressCounts.com does not control such Web sites and is not responsible for their content. The fact that the site contains links to other sites does not mean that ExpressCounts.com approves of, endorses, or recommends those sites, nor does it imply any association with their operators. ExpressCounts.com disclaims all warranties, express or implied, as to the accuracy, legality, reliability, or validity of any content on any other site and disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from any third party Web sites or content therein directly or indirectly accessed through links in the site.
7. Reservation of Rights. ExpressCounts.com reserves the right of final Acceptance of the Work Order Confirmation; the client understands that an officer of ExpressCounts.com is the only binding authority with the client in this Agreement. Should it be deemed necessary, said officer shall have the right to void this Agreement upon its inception or at any time it is felt that this Agreement is default.
8. Confidential Information. Means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”) which is marked “confidential” or “proprietary”, including oral information, which is designated confidential at the time of disclosure. Confidential Information does not include any information that the Receiving Party can demonstrate; (I) was known to it prior to its disclosure by the Disclosing Party; (II) is or becomes publicly known through no wrongful act of the Receiving Party; (III) has been rightfully received from a third party authorized to make such disclosure without restriction; (IV) is independently developed by the Receiving Party; (V) has been approved for release by the Disclosing Party’s prior written authorization; or (VI) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
Each party hereby agrees that it shall not disclose any Confidential Information received from the other party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, partners, principals, and employees who need access to such Confidential Information in order to affect the intent of this Agreement.
9. Default. Means for either party; (a) failure to perform any of its material obligations under this Agreement and failure to cure such default within thirty (30) days following notice thereof; (b) becoming or being declared insolvent or bankrupt or be the subject of any proceedings related to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it; (c) making an assignment for the benefit of its creditors, or entering into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (d) for Client to fail to pay any sum of money due hereunder.
10. Intellectual Property. Means any intellectual property or proprietary rights, including, but not limited to, copyright rights (including rights in audiovisual works), moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.
11. System. Includes all source and object code, including third party software, internal documentation used to provide the service to Client, ExpressCounts.com content and documentation. System software includes the database schema and stored procedures, HTML, XML, and ASP scripts and any other object code in any computer language used for the creation, management of or delivery of the system.
12. Compliance with Laws. Each party shall be responsible for compliance with all applicable laws and government regulations in the process of delivering and/or using the system.
1. One Time Use. Prospect lists are provided for one time use (i.e. solicitation) only, unless otherwise specified in your order.
2. Seeding. We reserve the right to seed our lists to detect unauthorized use or duplication. 3. General Liability. EXPRESSCOUNTS.COM AND/OR ITS REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSS SUSTAINED BY THE PURCHASER THROUGH THE USE OF THIS LIST. WE SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, AND IN NO EVENT, SHALL OUR LIABILITY EXCEED THE PRICE PAID FOR THE LIST OR OTHER SERVICES. 4. Suppression. ExpressCounts.com honors the wishes of consumers who request not to be solicited by mail or telephone. We routinely apply the FTC’s Do Not Call (DNC) Telephone Files, as well as, available state Do Not Call suppression lists before producing any list for rental. 5. FTC National Do Not Call. FTC regulations require Service Providers (such as ExpressCounts.com) to ensure that their "SELLER CLIENTS" have registered and paid for access to the National Do Not Call Registry prior to initiating their outbound telemarketing efforts. The SELLER is the specific business whose products or services are the subject of the planned solicitation. The SELLER´S registration (and payment) must cover all area codes that are covered by the requested list. In light of the foregoing, we are providing this list or processing service with the understanding that the SELLER either has registered (or paid) or will register (and pay) at the first opportunity to the extent required by law. |
13. States´ Do Not Call. The following states have their own Do Not Call laws and associated lists: Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Mississippi, Missouri, New York, Oklahoma, Tennessee, Texas, and Wisconsin. Due to the varying publication dates of such states´ files and the nature of compilation methods, WE CANNOT AND DO NOT WARRANT THAT THE NAMES AND/OR TELEPHONE NUMBERS OF SUCH SUBSCRIBERS HAVE BEEN IDENTIFIED OR DELETED FROM THE ORDERED LIST OR ARE REFLECTED IN THE ORDERED SUPPRESSION PROCESSING. In addition, the states of New York and Wisconsin require that any user of their Do Not Call suppression files must purchase subscriptions directly from the state. This applies to direct users, as well as, to users who gain access to, or benefit of, the suppression data through a third party. Compliance with the laws of individual states is understood to be your responsibility.
Client Data. ExpressCounts.com shall use the same degree of care to protect Client Data as used to protect Client’s Confidential Information. Except as required to provide technical support requested by Client, only the Client can enter, edit, delete, and use Client Data during the term of this Agreement. Upon termination of this Agreement, ExpressCounts.com shall delete all Client Data.
14. Security. ExpressCounts.com uses commercially reasonable practices, including encryption and firewalls, to ensure that Client Data is disclosed only to Client’s authorized users. However, Client acknowledges that the Internet is an open system and ExpressCounts.com cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Client Data.
15. Password. As part of the subscription and administration process, the Client can select passwords for the Client account. Client is responsible for maintaining the confidentiality of passwords, and agrees that ExpressCounts.com has no obligations with regard to the use of such passwords by third parties. The Client is responsible for any and all activities in the system with the use of Client password(s). The Client agrees to notify ExpressCounts.com immediately if Client has any reason to believe that the security of the Client’s account has been compromised.
16. Availability. ExpressCounts.com uses commercially reasonable efforts to maintain availability of the system twenty-four (24) hours per day, seven (7) days per week. However, scheduled and unscheduled interruptions may occur, and ExpressCounts.com does not warrant or guarantee uninterrupted availability of the system. Normal software or hardware upgrades are scheduled for nights and weekends, Central Time, and designed to cause a minimum amount of interruption to system availability. Clients will be notified of such interruptions in advance. In the event that an unscheduled interruption occurs, ExpressCounts.com will apply the appropriate use of internal and external resources to resolve the problem and return the system to availability as soon as possible. During these scheduled and unscheduled interruptions, Clients may be unable to transmit and receive data. Client agrees to cooperate with ExpressCounts.com during the scheduled and unscheduled interruptions. ExpressCounts.com reserves the right to modify, suspend, or discontinue providing the system or any portion thereof at any time, including the availability of any functional area of the system. ExpressCounts.com may also impose limits on certain features and services or restrict Clients access to parts of the system without notice or liability.
17. Support. ExpressCounts.com provides support to customers through a variety of systems. ExpressCounts.com strives to make the system an easy to use software application system. ExpressCounts.com also strives to make its support tools error-free and readily available. However, ExpressCounts.com does not warrant that the online materials will be without typographical or functional errors or always be available.
18. ExpressCounts.com Fees. Acceptance of these terms include acceptance of ExpressCounts.com fees, and Client hereby acknowledges receipt of ExpressCounts.com current fee schedule. ExpressCounts.com reserves the right to change fees, or to institute new fees, at any time. Clients shall be notified in advance of their effective date of changes in fees or new fees via electronic mail. Such changes or new fees shall become effective upon the later of the Client’s next billing cycle or thirty (30) days from the date of notice. Client is responsible for all charges, fees, and taxes related to its subscription and use of the system.
19. Third Party Fees and Costs. In addition to the charges set forth above, Client is responsible for all expenses and charges associated with accessing the World Wide Web and connecting to the ExpressCounts.com site, any service fees associated with such access and connection, and for providing all equipment necessary for Client to make the connection. USPS rates are subject to change and are not considered apart of this Agreement. Media placement is not considered apart of this Agreement.
20. Billings. For Client’s account, ExpressCounts.com will charge the Client’s account at the beginning of each billing period for; (a) new InterActive service related fees; (b) InterActive fees for the current billing period; (c) usage fees for the prior billing period; (d) any applicable transaction charges or other fees for the prior billing period; and (e) any applicable taxes on the above amounts. For purpose of dentification and billing, Client agrees to provide ExpressCounts.com with and maintain accurate Client information, including, without limitation, Client legal name, address, telephone number, e-mail address. Failure to maintain this information may, at ExpressCounts.com option; result in suspension or termination of Client’s services provided by ExpressCounts.com.
21. Payment and Terms. Payment shall be made in US dollars to ExpressCounts.com into the account designated by ExpressCounts.com or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. If due to bank charges, transfer fees, or the like, ExpressCounts.com should receive less than its invoice amount, ExpressCounts.com will reinvoice Client for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by ExpressCounts.com within fifteen (15) days after presentation, ExpressCounts.com will impose a debt service charge amounting to three percent (3%) of the overdue balance. Thereafter, a finance charge of three percent (3%) per month, or the maximum percentage allowed under applicable laws, whichever is greater, shall be applied to the overdue balance. In the event that any amount remains unpaid forty-five (45) days after presentation of invoice, ExpressCounts.com may discontinue, withhold, or suspend services to Client.
22. Order Acceptance. All orders for service are subject to acceptance by ExpressCounts.com. A service order will be deemed accepted by ExpressCounts.com when written confirmation of the service order is sent to Client. ExpressCounts.com may refuse to accept any service order or delay acceptance pending fulfillment of conditions ExpressCounts.com may choose to impose. Such refusal or such conditions may not be unreasonable; however, and ExpressCounts.com agrees to provide Client with reasonable notice via electronic mail or fax of any intent to delay or decline the acceptance of any service order.
23. DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ExpressCounts.com, HEREBY EXCLUDES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE PARTIES BY LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.
24. Default. In the event of a Default by one party, the other party may, at its option; (a) exercise any and all rights and remedies available to it at law or in equity; (b) immediately terminate this Agreement; and/or (c) declare all amounts due, or to become due, immediately due and payable, upon providing written notice thereof to the defaulting party.
25. Governing Law. The validity, construction, and interpretation of any agreement or contract shall be adjudicated in the appropriate court in the State of Arizona or Nevada applying Arizona or Nevada law.
26. Attorney’s Fees and Costs. If any legal action is commenced in connection with the enforcement of this Agreement or any instrument or agreement required under this Agreement, the prevailing party shall be entitled to costs, Attorney’s fees actually incurred, and necessary disbursements incurred in connection with such action, as determined by the court.
27. Entire Agreement. This Agreement, together with the policies and instructions incorporated by reference, constitutes the entire agreement between ExpressCounts.com and Client with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter.
28. Severability. If any provision of this Agreement is held by court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. Payment obligations, and the rights and obligations of the parties under Sections 6, 10, 12, and 14 shall survive the expiration or termination of this Agreement for any reason.
29. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any breach by the other party shall not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.
30. Assignment. This Agreement may not be assigned by one of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Such consent is not required in connection with the assignment of this Agreement pursuant to a merger in which the assigning party is the surviving entity or in which all or substantially all of the assigning party’s assets or equity is acquired.
31. Relationship of Parties. The relationship of Client to ExpressCounts.com under this Agreement shall be that of an independent contractor and nothing contained in this Agreement shall create or imply an agency relationship between ExpressCounts.com and Client, nor shall this Agreement be deemed to constitute a joint venture or partnership between ExpressCounts.com and Client.
32. Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance if any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; federal, state, or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent. This clause shall not apply to the payment of any sums due under this Agreement by either party to the other.
ExpressCounts.com may at any time revise these Terms of Use by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Terms of Use to which you are bound.
Client Data. ExpressCounts.com shall use the same degree of care to protect Client Data as used to protect Client’s Confidential Information. Except as required to provide technical support requested by Client, only the Client can enter, edit, delete, and use Client Data during the term of this Agreement. Upon termination of this Agreement, ExpressCounts.com shall delete all Client Data.
14. Security. ExpressCounts.com uses commercially reasonable practices, including encryption and firewalls, to ensure that Client Data is disclosed only to Client’s authorized users. However, Client acknowledges that the Internet is an open system and ExpressCounts.com cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Client Data.
15. Password. As part of the subscription and administration process, the Client can select passwords for the Client account. Client is responsible for maintaining the confidentiality of passwords, and agrees that ExpressCounts.com has no obligations with regard to the use of such passwords by third parties. The Client is responsible for any and all activities in the system with the use of Client password(s). The Client agrees to notify ExpressCounts.com immediately if Client has any reason to believe that the security of the Client’s account has been compromised.
16. Availability. ExpressCounts.com uses commercially reasonable efforts to maintain availability of the system twenty-four (24) hours per day, seven (7) days per week. However, scheduled and unscheduled interruptions may occur, and ExpressCounts.com does not warrant or guarantee uninterrupted availability of the system. Normal software or hardware upgrades are scheduled for nights and weekends, Central Time, and designed to cause a minimum amount of interruption to system availability. Clients will be notified of such interruptions in advance. In the event that an unscheduled interruption occurs, ExpressCounts.com will apply the appropriate use of internal and external resources to resolve the problem and return the system to availability as soon as possible. During these scheduled and unscheduled interruptions, Clients may be unable to transmit and receive data. Client agrees to cooperate with ExpressCounts.com during the scheduled and unscheduled interruptions. ExpressCounts.com reserves the right to modify, suspend, or discontinue providing the system or any portion thereof at any time, including the availability of any functional area of the system. ExpressCounts.com may also impose limits on certain features and services or restrict Clients access to parts of the system without notice or liability.
17. Support. ExpressCounts.com provides support to customers through a variety of systems. ExpressCounts.com strives to make the system an easy to use software application system. ExpressCounts.com also strives to make its support tools error-free and readily available. However, ExpressCounts.com does not warrant that the online materials will be without typographical or functional errors or always be available.
18. ExpressCounts.com Fees. Acceptance of these terms include acceptance of ExpressCounts.com fees, and Client hereby acknowledges receipt of ExpressCounts.com current fee schedule. ExpressCounts.com reserves the right to change fees, or to institute new fees, at any time. Clients shall be notified in advance of their effective date of changes in fees or new fees via electronic mail. Such changes or new fees shall become effective upon the later of the Client’s next billing cycle or thirty (30) days from the date of notice. Client is responsible for all charges, fees, and taxes related to its subscription and use of the system.
19. Third Party Fees and Costs. In addition to the charges set forth above, Client is responsible for all expenses and charges associated with accessing the World Wide Web and connecting to the ExpressCounts.com site, any service fees associated with such access and connection, and for providing all equipment necessary for Client to make the connection. USPS rates are subject to change and are not considered apart of this Agreement. Media placement is not considered apart of this Agreement.
20. Billings. For Client’s account, ExpressCounts.com will charge the Client’s account at the beginning of each billing period for; (a) new InterActive service related fees; (b) InterActive fees for the current billing period; (c) usage fees for the prior billing period; (d) any applicable transaction charges or other fees for the prior billing period; and (e) any applicable taxes on the above amounts. For purpose of dentification and billing, Client agrees to provide ExpressCounts.com with and maintain accurate Client information, including, without limitation, Client legal name, address, telephone number, e-mail address. Failure to maintain this information may, at ExpressCounts.com option; result in suspension or termination of Client’s services provided by ExpressCounts.com.
21. Payment and Terms. Payment shall be made in US dollars to ExpressCounts.com into the account designated by ExpressCounts.com or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. If due to bank charges, transfer fees, or the like, ExpressCounts.com should receive less than its invoice amount, ExpressCounts.com will reinvoice Client for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by ExpressCounts.com within fifteen (15) days after presentation, ExpressCounts.com will impose a debt service charge amounting to three percent (3%) of the overdue balance. Thereafter, a finance charge of three percent (3%) per month, or the maximum percentage allowed under applicable laws, whichever is greater, shall be applied to the overdue balance. In the event that any amount remains unpaid forty-five (45) days after presentation of invoice, ExpressCounts.com may discontinue, withhold, or suspend services to Client.
22. Order Acceptance. All orders for service are subject to acceptance by ExpressCounts.com. A service order will be deemed accepted by ExpressCounts.com when written confirmation of the service order is sent to Client. ExpressCounts.com may refuse to accept any service order or delay acceptance pending fulfillment of conditions ExpressCounts.com may choose to impose. Such refusal or such conditions may not be unreasonable; however, and ExpressCounts.com agrees to provide Client with reasonable notice via electronic mail or fax of any intent to delay or decline the acceptance of any service order.
23. DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ExpressCounts.com, HEREBY EXCLUDES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE PARTIES BY LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.
24. Default. In the event of a Default by one party, the other party may, at its option; (a) exercise any and all rights and remedies available to it at law or in equity; (b) immediately terminate this Agreement; and/or (c) declare all amounts due, or to become due, immediately due and payable, upon providing written notice thereof to the defaulting party.
25. Governing Law. The validity, construction, and interpretation of any agreement or contract shall be adjudicated in the appropriate court in the State of Arizona or Nevada applying Arizona or Nevada law.
26. Attorney’s Fees and Costs. If any legal action is commenced in connection with the enforcement of this Agreement or any instrument or agreement required under this Agreement, the prevailing party shall be entitled to costs, Attorney’s fees actually incurred, and necessary disbursements incurred in connection with such action, as determined by the court.
27. Entire Agreement. This Agreement, together with the policies and instructions incorporated by reference, constitutes the entire agreement between ExpressCounts.com and Client with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter.
28. Severability. If any provision of this Agreement is held by court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. Payment obligations, and the rights and obligations of the parties under Sections 6, 10, 12, and 14 shall survive the expiration or termination of this Agreement for any reason.
29. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any breach by the other party shall not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.
30. Assignment. This Agreement may not be assigned by one of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Such consent is not required in connection with the assignment of this Agreement pursuant to a merger in which the assigning party is the surviving entity or in which all or substantially all of the assigning party’s assets or equity is acquired.
31. Relationship of Parties. The relationship of Client to ExpressCounts.com under this Agreement shall be that of an independent contractor and nothing contained in this Agreement shall create or imply an agency relationship between ExpressCounts.com and Client, nor shall this Agreement be deemed to constitute a joint venture or partnership between ExpressCounts.com and Client.
32. Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance if any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; federal, state, or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent. This clause shall not apply to the payment of any sums due under this Agreement by either party to the other.
ExpressCounts.com may at any time revise these Terms of Use by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Terms of Use to which you are bound.
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