March 28, 2008
The services of Contrarian Solutions, LLC (the "Service(s)" or “EmailPerformance”) are provided to Customer under the terms and conditions of this EmailPerformance Terms of Service and all operating rules, policies, price schedules, and other supplemental documents referred to in this agreement or published from time to time by Contrarian Solutions, LLC (collectively, the "TOS"). This agreement is between you ("you" or "Customer"), as an authorized user of the Services, and Contrarian Solutions, LLC (the “Company”). The TOS (which include the supplemental documents which are expressly incorporated herein) comprise the entire agreement between Customer and Company and supersedes all prior agreements between the parties regarding the subject matter contained herein.
BY COMPLETING THE REGISTRATION PROCESS, CHECKING THE ACKNOWLEDGEMENT BOX AND CLICKING THE "SUBMIT" BUTTON, CUSTOMER IS INDICATING ITS AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE EMAILPERFORMANCE TOS.
1. ACKNOWLEDGEMENTS
Subject in each case to the terms listed in the remainder of the TOS, you hereby acknowledge and agree that: The Service may not be used for the sending of unsolicited email ("spam"). The Service may only be used for lawful purposes. You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Service. You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you (“Permission Based Lists”) in connection with your use of the Service. You hereby covenant that you shall not use any other lists in connection with your use of the Service. You acknowledge and agree that not all messages sent through use of the Service will be received by their intended recipients. Every email message sent by you in connection with the Service must contain the Company "unsubscribe" link that allows the email recipient to remove themselves from your mailing list. You will comply with the restrictions on content of e-mail messages and activities using the Service as set forth in the TOS. You will adopt and maintain the Privacy Policy, which may be modified by Company from time to time.
2. PAYMENT FOR THE SERVICE
All email delivery prices are subject to change at any time. All fees paid to Company are non-refundable, unless an account is terminated by Company for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by Company. Fees are payable in US dollars. If Company is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail. All prices are subject to change and you are responsible for reviewing the Pricing Schedule from time to time and remaining aware of the Fees charged by Company.
For all accounts, Company may charge an account re-activation fee should an account need to be re-activated by Customer.
You must complete the registration form on the EmailPerformance Sign-Up Page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form.
The current Company privacy policy, which is incorporated herein by this reference, is available at http://www.emailperformance.com/main/privacy.php. By accepting the TOS, Customer expressly consents to disclosures and use of Customer's information as enumerated in Company's privacy policy.
4. MODIFICATIONS TO TERMS OF SERVICE AND PRIVACY POLICIES
Company may amend the TOS or its privacy policy at any time upon thirty (30) days notice by (i) posting a revised version of the TOS or the privacy policy on the EmailPerformance.com Web site, and (ii) sending information regarding amendments to the TOS or the privacy policy to the email address Customer provides to Company. Customer's continued use of the Service after such thirty (30) day notice period shall be deemed acceptance by Customer of the amended TOS or privacy policy. Otherwise, the TOS and the privacy policy may not be amended except in writing signed by both parties.
5. MODIFICATIONS TO SERVICE
Company reserves the right to modify or discontinue the Service upon forty-five (45) days notice to Customer. Company shall not be liable to Customer or any third party should Company exercise its right to modify or discontinue the Service; provided, however, that at its own discretion, Company may immediately disable your access to the Service without refund if Company believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
6. CUSTOMER ACCOUNT, PASSWORD, AND SECURITY
As part of the registration process, Customer shall be required to provide an email address and password. Customer is entirely responsible if Customer does not maintain the confidentiality of Customer's password, or account information. Furthermore, Customer is entirely responsible for any and all activities which occur under Customer's account. Customer agrees to immediately notify Company of any unauthorized use of Customer's account or any other breach of security known to Customer.
7. DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY LIABILITY TO CUSTOMERS OR ANY THIRD PARTIES IS LIMITED TO $50. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
9. NO RESALE OF THE SERVICE
Customer agrees not to resell the use of the Service.
10. CUSTOMER CONDUCT
Customer is solely responsible for the contents of its transmissions through the Service, and, as stated above, Company simply acts as a passive conduit for Customer to send and receive information of Customer's own choosing. However, Company reserves the right to take any action with respect to the Service that Company deems necessary or appropriate in Company's sole discretion if Company believes Customer or Customer's information may create liability for Company, compromise or disrupt the Service for Customer or other Company subscribers, or may cause Company to lose (in whole or in part) the services of Company's ISPs or other suppliers. Customer's use of the Service is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). Customer agrees: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; (4) to comply with all regulations, policies and procedures of networks connected to the Service; (5) not to use the Service to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; and (6) not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Service makes use of the Internet for Customer to send and receive information of Customer's own choosing; therefore, Customer's conduct is subject to Internet regulations, policies and procedures. Customer will not use or reference the Service for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process, and will not attempt to gain unauthorized access to other computer systems. Customer shall not interfere with another Customer's use and enjoyment of the Service or another entity's use and enjoyment of similar services.
11. SPAM POLICY
The Service may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy at http://www.emailperformance.com/main/antispam-policy.php. You shall use the Service only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). Although Company has no obligation to monitor the content provided by you or your use of the Service, Company may do so and may block any e-mail messages, remove any such content or prohibit any use of the Service that Company believes may be (or is alleged to be) in violation of the foregoing.
12. INDEMNIFICATION
Customer agrees to indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Customer's use of the Service, the violation of the TOS by Customer, or the infringement by Customer, or other user of the Service using Customer's computer, of any intellectual property or other right of any person or entity.
13. TERM AND TERMINATION
The TOS shall commence on the date they are entered into by Customer and shall continue in full force and effect for a period of one (1) month, and thereafter the TOS shall automatically renew on a monthly basis. At any time, either party may terminate the TOS without cause upon prior written notice. In addition, the TOS may be terminated at any time by either party upon written notice if the other party (a) ceases to function as a going concern or to conduct operations in the normal course of business, or (b) has a petition filed by or against it under any state or federal bankruptcy or insolvency laws (or their foreign equivalents) which petition has not been dismissed or set aside within sixty (60) days of filing. Company shall not be liable to Customer or any third party for termination of the TOS or the Service. Customer shall have no right and Company will have no obligation after termination to refund any pre-paid amounts to Customer. You may terminate this Agreement at any time by calling Company Customer Support. There are no refunds for any fees paid.
Company may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Company will provide upon request the list of unsubscribe requests from your last campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
If your account is classified as inactive for over 120 days, Company has the right to permanently delete your subscriber data. Company will use good faith efforts to contact you via email prior to taking any permanent removal actions.
14. PROPRIETARY RIGHTS TO CONTENT
Customer acknowledges that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in email-distributed by Company, is protected by copyrights, trademarks, service marks, patents or other proprietary rights (“Content”) and laws; therefore, Customer is only permitted to use Content as expressly authorized by owners of such Content.
15. NO IMPLIED ENDORSEMENTS
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Company of that third party or of any product or service provided by a third party.
16. PERMISSION
Every email message sent in connection with the Service must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Company. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission, and update the email addresses to which messages are sent through your Company account.
You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Service. You hereby covenant that you shall not use any other lists in connection with your use of the Service. Without limiting the foregoing, you agree that you shall not utilize the Service to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. Company, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Company will terminate your use of its Service if Company determines that your level of spam complaints is higher than industry norms.
17. GENERAL TERMS
The TOS are governed in all respects by the laws of the State of Delaware as such laws are applied to agreements entered into and to be performed entirely within Delaware between Delaware residents. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Both parties submit to personal jurisdiction in Delaware and further agree that any cause of action relating to the TOS shall be brought in a court in Delaware; provided, however nothing herein shall restrict either of the parties from resorting to the courts of any jurisdiction in order to collect, enforce or execute any judgment obtained in the federal or state courts located in the State of Delaware. If any provision of the TOS is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Company's failure to act with respect to a breach by Customer or others does not waive Company's right to act with respect to that or subsequent or similar breaches. Customer may not assign or transfer the TOS or any rights hereunder, and any attempt to the contrary is void. Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond Company's reasonable control. Customer agrees that Company may communicate with Customer via email and any similar technology for purposes relating to Customer's participation or the Service and any other services provided or which may in the future be provided by Company or on Company's behalf. The TOS set forth the entire understanding and agreement between the parties with respect to the subject matter hereof.
