Peacock Data (hereinafter, “PD”) has established these reasonable Terms of Service to make working with purchasers (hereinafter, “Customer” or “Customers”) of its data processing services (hereinafter, “Service” or “Services”) and products (hereinafter, “Product” or “Products”) a productive, agreeable, and fair enterprise for all parties involved.
1. Orders of services and products
2. Applicable rates
Customers agree to pay PD for Services or Products at the rates posted on PD’s websites or as otherwise agreed to in writing by PD.
3. Terms of prepaid sales
Until PD 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 electronic payment through PD’s provider, by check, by credit card, by bank transfer, by money transfer, or by any other means agreed to by PD. 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 PD. 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 #5). Conversely, in the event the final actual cost is lower than the prepaid estimate, PD will refund to the Customer the cost difference by means of check or by means of the method the Customer made the original prepayment.
4. Establishing credit
PD, upon a request made by a Customer and at PD’s sole discretion, may extend credit to the Customer beginning after the first prepaid order, and to government and large corporate or institutional Customers beginning with the first order.
5. 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 two percent per month continuously compounded 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 PD.
6. Failed payment transactions
In the event a Customer pays for Services or Products, prepaid or otherwise, by electronic payment through PD’s provider, 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 PD, whether because of insufficient funds or any other reason, the Customer agrees to pay PD any additional amount due within 30 calendar days subject to the same terms and conditions set forth in Terms of invoiced sales above (see #5). In such an event the Customer further agrees to pay PD an additional service charge of the lower of $50 or the highest rate under applicable law.
7. Changes and cancellations
Orders for Services and Products may be changed or canceled without charge to the Customer at any time before such Services have been setup for processing, or in the case of tangible Products, before such Products are delivered, or in the case of electronic delivery of Products, before download instructions have been sent or otherwise been made available to the Customer. Customers further agree that orders of Services cannot be changed or canceled once setup has begun and to not accept delivery of any canceled tangible Products purchased. If a Customer later accepts delivery of canceled tangible Products purchased, the cancellation shall be considered null and void.
8. 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 PD within 30 calendar days of purchase. PD may review any report of a defect and will determine at its sole discretion if the defect exists. Because database services and database products are non-tangible, there are no refunds under any circumstances for Services and non-tangible Products.
9. 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 PD by Customers or by other list owners or brokers on the Customer’s behalf, and any work product created by PD for the Customer, shall be held in strictest confidence by PD and shall not be disclosed to any third party without the prior consent of the Customer. PD 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. PD shall protect the Proprietary Information in a secure, enclosed, and locked location accessible only by authorized PD personnel. PD acknowledges that the Customer is the owner of all of the Customer’s Proprietary Information, together with any work product created by PD from such Proprietary Information. Customers agree to hold in strict confidence any information learned about PD’s practices and business activities and any other PD Proprietary Information that is not in the public domain.
10. Privacy and data protection warranties
Customers agree to comply with all privacy and data protection laws, rules, and regulations in activities in which they engage PD’s Services or Products. Customers further warrant that any Proprietary Information sent to PD has been legally obtained, that the Customer’s subsequent use of such Proprietary Information or use of any of PD’s Services and Products will be legal, and that, to the best of the Customer’s knowledge, none of the activities in which they engage PD’s Services or Products will involve the commission by PD of any illegal act. PD 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, PD agrees to return all of Customer’s Proprietary Information which relates to the suspended Services or Product licenses promptly upon Customer’s payment to PD of any then current invoices or amounts due relating to such Services or Products.
11. Product licenses
Customers agree to comply with any and all terms of license agreements associated with PD 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, PD 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.
12. LIABILITY NOTICE
PD PROVIDES DATABASE SERVICES AND PRODUCTS FOR LAWFUL PURPOSES ONLY AND EXPRESSLY FORBIDS THEIR USE IN ANY UNLAWFUL MANNER. FURTHERMORE, PD 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 OR OTHERWISE ACQUIRED, NOR FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY PD’S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, PROCESSING, DEVELOPING, COMMUNICATING, OR DELIVERING THE SERVICES AND/OR PRODUCTS MENTIONED HEREIN, DIRECTLY OR INDIRECTLY TO THE CUSTOMER. PD’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 PD SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Applicable law
These Terms of Service and any and all other terms and conditions relating to Services and Products provided or licensed by PD 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.
PD 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 PD 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 PD or its websites, please contact us.