TERMS & CONDITIONS

COPY APPROVAL
Advertiser must deliver to TAKE 5 SOLUTIONS LLC, (“TAKE 5 SOLUTIONS LLC”) the content of the advertisement Advertiser is contracting TAKE 5 SOLUTIONS LLC to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to TAKE 5 SOLUTIONS LLC’s approval. TAKE 5 SOLUTIONS LLC reserves the right to reject any Copy that advertises or promotes any product or service involving illegal activity, illegal products, illegal product paraphernalia, sexual paraphernalia, adult films or other media, gambling, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. By reserving this right, TAKE 5 SOLUTIONS LLC shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy.

DETAILS OF BROADCAST
The email messages broadcast by TAKE 5 SOLUTIONS LLC shall identify the source of the recipient’s data collection and shall contain an opt-out feature that allows the recipient to electronically communicate his desire to be removed from the TAKE 5 SOLUTIONS LLC (or affiliate) database.

HARDWARE, SOFTWARE, and DATABASE
TAKE 5 SOLUTIONS LLC shall obtain and maintain the computer hardware and software necessary to perform its obligations under these Terms and Conditions. Such hardware and software shall not be dedicated hardware or software. Nothing in these Terms and Conditions shall grant any right, title or interest in or to the TAKE 5 SOLUTIONS LLC (or affiliate) database, hardware or software.

PAYMENT
Advertiser shall pay in full the fees charged by TAKE 5 SOLUTIONS LLC in the invoice. If Advertiser fails to pay the full amount of the charges detailed in any TAKE 5 SOLUTIONS LLC invoice within thirty (30) days of such invoice, the unpaid amounts of such invoice shall accrue interest at a rate of 18% per annum. Additionally, Advertiser agrees to pay all of TAKE 5 SOLUTIONS LLC’s cost of collection of such charges, including without limitation TAKE 5 SOLUTIONS LLC’s reasonable attorneys’ fees.

LATE FEES
In addition to the terms described in Section 4, if Advertiser fails to pay the full amount of the charges detailed in any TAKE 5 SOLUTIONS LLC invoice within thirty (30) days of such invoice, Advertiser shall pay TAKE 5 SOLUTIONS LLC a Late Fee in the amount of 5% of the charges detailed in such TAKE 5 SOLUTIONS LLC invoice.

INDEMNIFICATION
Advertiser shall indemnify, defend and hold harmless TAKE 5 SOLUTIONS LLC against all third party claims, actions and liabilities (including all reasonable costs, expenses and attorneys’ fees) arising from or in connection with (a) Advertiser’s product(s), services or the content of the Advertiser’s copy, including without limitation any claim alleging any violation of any third party’s intellectual property rights; or (b) Advertiser’s breach of any of its obligations, representations or warranties under these Terms and Conditions. TAKE 5 SOLUTIONS LLC shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information.

SMS INDEMNIFICATION

TAKE 5 SOLUTIONS owns and manages its proprietary mobile database. Under no circumstances shall this database be construed as part of the Advertisers domain; therefore, TAKE 5 SOLUTIONS shall indemnify, defend, and hold harmless advertisers against all 3rd party claims, actions and liabilities (including all reasonable costs, expenses and attorney fees) arising from or in connection with TAKE 5 SOLUTIONS cell phone subscriber database receiving the advertisers message. However, TAKE 5 SOLUTIONS will not be held liable for Advertisers message content and shall provide approval or disapproval of such advertising materials prior to campaign broadcast. Advertisers agree not to alter approved landing pages post approval unless both parties are notified and have signed off on the changes. TAKE 5 SOLUTIONS is compliant with Federal and State marketing laws and under no circumstances shall TAKE 5 SOLUTIONS broadcast messages containing pornography, multi-level marketing, Gaming and/or Gambling offers.

WARRANTIES
TAKE 5 SOLUTIONS LLC MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADVERTISEMENTS, EXPRESS OR IMPLIED. THIRD PARTIES PROVIDE THE EMAIL ADVERTISEMENTS ON AN “AS IS” BASIS. TAKE 5 SOLUTIONS LLC EXPRESSLY DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

LIMIT OF LIABILITY
IN NO EVENT SHALL TAKE 5 SOLUTIONS LLC BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF TAKE 5 SOLUTIONS LLC’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THESE TERMS AND CONDITIONS SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID TO TAKE 5 SOLUTIONS LLC UNDER THE INVOICE.

FORCE MAJEURE
Neither party shall be liable for delays or nonperformance of these Terms and Conditions caused by strike, fire or accidents, nor shall either party be liable for delay or nonperformance caused by lack of availability of materials, fuel or utilities or for any other cause beyond its control.

ASSIGNMENT
Assignment Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.

RELATIONSHIP OF THE PARTIES
The parties are independent contracting entities, and there is no partnership or agency relationship between them.

ENTIRE AGREEMENT
Except as modified or supplemented by a writing executed by both parties, the Terms and Conditions described herein and in the attached invoice, incorporated by reference herein, are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein.

DISPUTES
Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms and Conditions. The law of the State of Florida shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms and Conditions shall be Broward County, Florida.

SEVERABILITY
Should any provisions of these Terms and Conditions be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from these Terms and Conditions without affecting the validity or enforceability of any other provision

HEADINGS
The headings of these Terms and Conditions are for convenience only and shall not be used to construe the meaning of this Agreement.

Take 5 Solutions, LLC (“Company”) is not responsible for the success of its Customers advertising campaign.  No refunds or credits will be authorized.  All representations and warranties whether express or implied, including without limitation, any warranties of merchantability or fitness for a particular purpose, are hereby disclaimed by Company.  In no event shall Company be liable for any direct, indirect, special, exemplary, incidental, consequential or punitive damages, irrespective of whatever such damages were foreseeable or unforeseeable. 
 
The limit of Company liability (whether in contract, tort, negligence, strict liability or by statute or otherwise) in any manner related to this agreement, for any and all claims, shall not in the aggregate exceed the fees and expenses paid for the services rendered by Company.  In no event shall either party be liable for consequential, incidental or punitive losses, damages or expenses (including lost profits.)  Any action by either party must be brought within six (6) months.  Venue and jurisdiction for any claim arising from or out of this Agreement shall be in Broward County Florida.
 
Note:
Take 5 Solutions, LLC does not permit the usage of exit pop-up window links on offer landing pages without prior consent by both parties.  If mutual agreement of exit pop-up windows linked to landing pages, the following line must be signed by the Take 5 Solutions’ account manager.