The Provider ("Provider") delivers a unique suite of services to design, launch, and manage multi-channel direct marketing campaigns via e-mail, text messaging, social network messaging, and other channels (the "Services"). Each person who desires to use the Services must agree to the following terms and conditions, as amended and in effect from time to time ("you" or "User").
Please read these terms and conditions of use carefully. These terms and conditions of use may have changed since your last use of the services. You agree to check for updates to these terms and conditions of use. By using the services, you indicate your acceptance of these terms and conditions of use. If you do not accept these terms and conditions of use, then you may not access this website nor use the services.
I. Services and Support
- The Services are available only to persons who can form legally binding contracts under applicable law. If you are using the Services as an employee on behalf of an employer, you must have the authorization to bind your employer by your use of the Services. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify to use the Services, please do not use the Services.
- Each User must complete a registration form in order to use the Services. User will provide true, accurate, current, and complete information as requested in the registration form, and as part of the vetting process that the Provider has implemented to approve Users of the Services, and will update the information to keep it current. As part of the registration process, User will identify an email address and password for User's Provider account. User is responsible for maintaining the security of the User account, passwords, and files, and for all uses of User's account and of the Services in User's name. At its sole discretion, the Provider reserves the right to refuse registration or approval of accounts, or cancel an existing account, that it deems to be inappropriate.
- Technical support for the Services is provided to Users as per the Service Level Guarantee.
- From time to time, the Provider may amend the Agreement, at its sole discretion, by posting updated versions of the Agreement or by notifying User by other means. All such modifications to the Agreement shall become effective upon the posting of the revised Agreement or by the receipt of notification of a change to the Agreement by the User.
II. Restrictions and Responsibilities
- This is an Agreement for Services, and User is not granted a license to any software by this Agreement. User will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any software, documentation, or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party unless specifically authorized by the Provider; or remove any proprietary notices or labels.
- User agrees that each commercial email – defined as any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service - sent by User in connection with the Services shall contain an "unsubscribe" link that allows recipients to remove themselves from User's mailing list. User is prohibited from using the Service to mail to any recipient who has clicked on the unsubscribe link. The Provider automatically processes unsubscribe requests. If User elects to process unsubscribe requests through a separate system, then User shall process all such unsubscribe requests within ten (10) days of request by a User's email recipient. Failure to comply with this requirement may result in a termination of User's account by the Provider, and all payments previously paid shall be forfeited by User at the time of termination.
- In using the varied features of the Services, User may provide information (such as name, contact information, or other registration information relating to either the User or User's employer) to the Provider. The Provider may use this information and any technical information about User's use of the Services to tailor its presentations to User, facilitate User's movement through the Services' administration tools, or communicate separately with User. If User accessed the Services through a partner of the Provider, all User information obtained by such partner may be shared with the Provider. The Provider may also share any User information with such partners. The Provider will not provide information to companies User has not authorized, and will not permit the companies that get such information to sell and redistribute it without User's prior consent.
- User hereby agrees to indemnify and hold harmless the Provider and its business partners, third party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorney's fees) in connection with any claim or action that arises in any way from (a) an alleged violation of the Agreement or (b) User's use of the Services. Although the Provider has no obligation to monitor the content provided by User or User's use of the Services, the Provider may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the Agreement.
- User shall not use the Services in any manner (including, without limitation, the transmission of third party content or information) that may violate or infringe upon any rights of a third party. User shall be subject to the indemnification provisions in this Agreement if User's use of the Services violates or infringes upon such rights.
- User shall be solely responsible for securely maintaining its user name, password and other account information. The Provider may follow the instructions of any person who represents he is authorized by the User to use or make any changes to the account, provided such person delivers the correct user name and password. The Provider shall have no liability to User for any unauthorized use of User's account or the Services provided hereunder.
III. Inactive Accounts
When an account is classified (at Provider's sole discretion) as inactive, the Provider will use reasonable efforts to notify User by email. Inactive accounts have 30 days to become active or the account and its data may be permanently removed from the provider database.
IV. Prohibited Content
- The Provider prohibits Users from sending any type of message via use of the Services with content that is in violation of the Content Restrictions posted in the following Terms or other page that lists such Content Restrictions.
- The Provider prohibits User from using features and services including SMTP+, SMTP relay, Fast Email, Instant SMTP, WebService/API to send bulk messages that include content that is commercial in nature (sells or promotes a product or a service) and that has been provided by a third party (also called DEM, EDM, direct emailing, direct email marketing). In case of violation, Provider reserves the right to suspend or terminate Client's user of the Service.
V. Warranty Disclaimer
User uses the services at its own risk. The provider does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. The services are provided "as is" and the provider disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and noninfringement.
VI. Limitation of Liability
Notwithstanding anything to the contrary, except for personal injury or damage to real or tangible personal property proximately caused by the provider, the provider and its suppliers (including but not limited to all equipment and property suppliers), directors, officers, affiliates, insurers, representatives, contractors, and employees shall not be liable for any direct, indirect, punitive, special, or consequential damages resulting from any action in contract, tort, or otherwise, even if the provider has been advised of the possibility of such damages. Notwithstanding anything to the contrary, except for fraud or wilful misconduct, provider's aggregate liability to user for any claims of any type or nature hereunder shall not exceed in the aggregate the amount paid by customer to the provider during the twelve months prior to such claim.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement, and User does not have any authority of any kind to bind the Provider in any respect whatsoever.
- In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorney's fees, in addition to all other damages provided by applicable law.