TERMS OF SERVICE. . . .

1. How We Do Business

Peacock Data, Inc. (hereinafter, “PDI”) has established these reasonable Terms of Service to make working with purchasers (hereinafter, “Customer”) of its data processing services (hereinafter, “Services”) and products (hereinafter, “Products”) a productive, agreeable and fair enterprise for all parties involved.

2. Orders of Services and Products

Orders of Services and Products may be submitted by Customers using PDI’s online order system, by electronic mail, by facsimile, by written correspondence, verbally or by any other means agreed to by PDI. By submitting an order a Customer is requesting Services or Products from PDI, agreeing to pay for such Services or Products on time and at applicable rates, agreeing to these Terms of Service, agreeing to PDI’s Privacy Policy and agreeing to any and all other terms or conditions set forth on PDI’s websites or provided to the Customer by any means of written correspondence including, but not limited to letters, notes, electronic mail and facsimile (hereinafter, “in writing”).

3. Applicable Rates

Customers agree to pay PDI for Services or Products at the rates posted on PDI’s websites or as otherwise agreed to in writing by PDI.

4. Terms of Prepaid Sales

Until PDI agrees to extend credit, all sales of Services and Products must be prepaid in full by the Customer before data processing begins in the case of Services, or Products are delivered. Such prepayment may be made by means of check, by credit card, by bank transfer, by money transfer or by any other means agreed to by PDI. For sales of Services for which the actual final cost cannot be determined until after data processing is complete, such as Services for which rates are based on the number of records matched, Customers must make a prepayment based on an estimated final cost provided by PDI. In the event the final actual cost is higher than the estimated prepayment, the Customer agrees to be responsible for, and will be invoiced for any cost difference subject to the terms and conditions of Terms of Invoiced Sales below (see #6). Conversely, in the event the final actual cost is lower than the prepaid estimate, PDI will refund to the Customer the cost difference by means of check or by means of the method the Customer made the original prepayment.

5. Establishing Credit

PDI, upon a request made by a Customer and at PDI’s sole discretion, may extend credit to the Customer beginning after the first prepaid order, and to government and large corporate and institutional Customers beginning with the first order.

6. Terms of Invoiced Sales

Invoices for Services and Products are due upon receipt by the Customer. All amounts not paid within 30 calendar days of the invoice date shall be subject to a service charge of the lower of 1.5% per month or the highest rate under applicable law, effective from the invoice date. The Customer agrees to pay any and all reasonable attorney fees, court costs and other expenses incurred in the collection of any amount owed by the Customer and not paid when due. Customers further agree they (and not any other party) are totally responsible for any unpaid invoice amount unless otherwise agreed to in writing by PDI.

7. Failed Payment Transactions

In the event a Customer pays for Services or Products, prepaid or otherwise, by check, by credit card, by bank transfer, by money transfer or by any other means, and the full amount due is not made available to PDI, whether because of insufficient funds or any other reason, the Customer agrees to pay PDI any additional amount due within 30 calendar days subject to the same terms and conditions set forth in Terms of Invoiced Sales above (see #6). In such an event the Customer further agrees to pay PDI an additional service charge of the lower of $50 or the highest rate under applicable law.

8. Changes and Cancellations

Orders for Services and Products may be changed or canceled without charge to the Customer at anytime before such Services have been setup for processing or such Products are delivered. Customers further agree that orders of Services cannot be changed or canceled once setup has begun and to not accept delivery of any canceled Product purchase. If a Customer later accepts delivery of a canceled Product purchase, the cancellation shall be considered null and void.

9. Returns and Refunds

The files provided to Customers on disks and tapes, and media retrieved by Customers via the Internet will be replaced at no additional charge to the Customer if the file or files or the media are corrupted or otherwise physically defective, provided the Customer reports such a defect or defects to PDI within 30 calendar days of purchase. PDI may review any report of a defect and will determine at its sole discretion if the defect exists. Because database services and products are non-tangible, there are no refunds under any circumstances.

10. Confidentiality and Proprietary Information

All data, tapes, mailing lists, call lists, product designs, business and marketing plans, product strategies and any other confidential information (hereinafter, “Proprietary Information”) submitted to PDI by Customers or by other list owners or brokers on the Customer’s behalf, and any work product created by PDI for the Customer, shall be held in strictest confidence by PDI and shall not be disclosed to any third party without the prior consent of the Customer. PDI further agrees not to use or make copies of the Proprietary Information except as required to provide Services to the Customer, and agrees to limit access to the Proprietary Information to its own employees, agents and consultants strictly on a need-to-know basis. PDI shall protect the Proprietary Information in a secure, enclosed and locked location accessible only by authorized PDI personnel. Customers shall have the right to inspect PDI’s facilities during normal business hours for the purpose of reviewing PDI’s security practices. PDI acknowledges that the Customer is the owner of all of the Customer’s Proprietary Information, together with any work product created by PDI from such Proprietary Information. Customers agree to hold in strict confidence any information learned about PDI’s practices and business activities and any other PDI proprietary information that is not in the public domain.

11. Privacy and Data Protection Warranties

Customers agree to comply with all privacy and data protection laws, rules and regulations. Customers further warrant that any Proprietary Information sent to PDI has been legally obtained, that the Customer’s subsequent use of such Proprietary Information or use of any PDI Products will be legal, and that, to the best of the Customer’s knowledge, none of the activities for which it has engaged the Services or Products of PDI will involve the commission by PDI of any illegal act. PDI may suspend the Services or any Product License, with or without notice, if in its reasonable judgment the performance of the Services or use of its Products would be illegal. Such a suspension of Services or Product Licenses shall not constitute a default under these Terms of Service. In such an event the parties agree to use their best efforts to implement an alternative method of performing the Services or utilizing the Products. In the event that no such alternative method can be reasonably implemented, PDI agrees to return all of Customer’s Proprietary Information which relates to the suspended Services or Product Licenses promptly upon Customer’s payment to PDI of any then current invoices relating to such Services or Products.

12. Product Licenses

Customers agree to comply with any and all terms of License Agreements associated with PDI Products purchased or otherwise used by the Customer or the Customer’s agents. If a Customer fails to abide by any part of a License Agreement, PDI may suspend the License Agreement, with or without notice, and such a suspension shall not constitute a default under these Terms of Service or the License Agreement.

13. LIABILITY NOTICE

PDI PROVIDES DATABASE SERVICES AND PRODUCTS FOR LAWFUL PURPOSES ONLY AND EXPRESSLY FORBIDS THEIR USE IN ANY UNLAWFUL MANNER. FURTHERMORE, PDI SHALL NOT BE LIABLE TO CUSTOMERS FOR THE COMPLETE ACCURACY OF ALL DATA EXAMINED AND/OR ALTERED, NOR FOR THE COMPLETE ACCURACY OF ALL PRODUCTS LICENSED, NOR FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY PDI’S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, PROCESSING, DEVELOPING, COMMUNICATING OR DELIVERING THE DATA AND/OR PRODUCTS MENTIONED HEREIN, DIRECTLY OR INDIRECTLY TO THE CUSTOMER. PDI’S SOLE LIABILITY AND THE CUSTOMER'S SOLE REMEDY, REGARDLESS OF THE FORM OF LEGAL ACTION TAKEN BY THE CUSTOMER, WHETHER IN TORT OR CONTRACT, SHALL NOT EXCEED THE REFUND OF THE AMOUNTS, IF ANY, PAID BY THE CUSTOMER. CUSTOMERS AGREE PDI SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. Applicable Law

These Terms of Service and any and all other terms and conditions relating to Services and Products provided or licensed by PDI shall be governed and construed in accordance with the laws of the State of California, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns.

15. Summation

PDI may at any time and without notice modify these Terms of Service or any other terms or conditions relating to the Services and Products it provides or licenses by posting such changes on its website or by providing such changes in writing to Customers. While PDI has made every attempt to make its policies as clear as possible, if anyone has further questions about these Terms of Service or the practices of PDI or its websites, please contact us.