Please read the following important Terms of Service Agreement (the "Agreement") before accessing or using any of the various services (the "Services") made available to you (the "Member") by EmailDelived.Com and/or Marketers Publishing Group, Inc. through the EmailDelivered.Com (www.EmailDelivered.com) website.
EMAILDELIVERED™ MEMBER AGREEMENT
The EmailDelivered Member Agreement (the “Agreement”) is a legal agreement between You (“You” or “Your”) and Marketers Publishing Group, Inc., its affiliates, and each of their respective successors and assigns (collectively, “EmailDelivered”) governing Your use of the (i) EmailDelivered Bounce Manager, EmailDelivered IP Monitor, EmailDelivered Email Washer, and EmailDelivered SpamGuard, and any other services, features, or tools developed, operated, or maintained by EmailDelivered, or accessible via http://www.EmailDelivered.com or any other designated web site or IP address (the “Site”), (ii) the content contained therein, including any other printed communications, and (iii) any offline components provided by EmailDelivered for use in connection therewith (all of the foregoing collectively referred to herein as the “EmailDelivered Platform” or “Platform”).
BY USING THE PLATFORM, OR DOWNLOADING, INSTALLING, ACTIVATING, OR USING ANY MATERIALS AVAILABLE THROUGH THE SITE, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY, WITHOUT LIMITATION OR QUALIFICATION, AS WELL AS EMAILDELIVERED’S PAYMENT AND REFUND POLICIES AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND EMAILDELIVERED’S PAYMENT AND REFUND POLICIES AND TO FOLLOW ALL APPLICABLE LAWS AND REGULATIONS, DO NOT ACCESS OR USE THE SERVICES.
- Services; Fees; Payment
- Services. The EmailDelivered Platform is a suite of tools to help you manage your email marketing campaigns more effectively. EmailDelivered can also help you resolve deliverability issues with major Internet Service Providers and Email Service Providers.
- Pricing. Pricing for the Platform is set forth in the schedule located at the (“Fee Schedule”). You are responsible for reviewing the applicable Fee Schedule from time to time and remaining aware of the fees charged by us. The Fee Schedule is subject to change at any time in our sole discretion, and if You do not agree to any such changes, You should contact us to cancel Your account. We will use good faith efforts to notify You prior to implementing any significant change to the Fee Schedule. You understand and agree that if your usage of the Platform exceeds the volume allowed under a particular Fee Schedule category, you will be automatically billed at a rate of $.00047 per 1000 messages sent. You can increase your package for the following month by notifying us in advance of the next billing cycle.
- Cancellation. Either party may terminate this agreement by delivering written notice ("Written Notice of Cancellation") to the other party. Delivery of Written Notice of Cancellation shall cause a 30-day "Notification Period" to begin and termination of this agreement shall take effect at the end of the Service Cycle in effect at the end of the notification period. (Ex. If your billing cycle starts on March 5th, and you cancel on or after March 5th, your final charge would be billed on April 5th and your service will terminate on May 4th). Your final charge will be billed at the current plan rate at the time of cancellation.
- Setup Fee. A setup fee of $997 (“Setup Fee”) is due prior to commencement of integration work or any commercial use of the Platform; provided, however, that your first month usage fee will offset the Setup Fee. For example, if your monthly fee is $100, You would pay $897 for your first month. If your monthly fee is $1000, You would pay no additional fees and receive no additional credits.
- Billing. You will be billed in advance on a monthly basis. If You pay by credit card, You hereby authorize us to charge Your credit card for such amounts on a regular monthly basis, beginning when you sign up and continuing until such time as Your EmailDelivered account is terminated. If we are for any reason unable to effect automatic payment by credit card, we will attempt to notify You by email. Your EmailDelivered account may be disabled until payment is received. If Your account is terminated by us for nonpayment, in our sole discretion, Your data will be purged from the Platform, and You will be required to pay any past due balance, an additional Setup Fee, and six (6) months in advance to recommence use of the Platform.
- Disputes. Any disputes about charges to You under this Agreement must be submitted to us in writing within thirty (30) days of the date such charges are incurred. You agree to waive all disputes not raised within the 30-day period, and all such charges will be final and not subject to challenge.
- Refunds. We are required to provide a refund only if we terminate Your account without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us.
- Taxes. You agree to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this Agreement, or use of the Platform, excluding taxes based on net income payable by us.
- Term; Termination
- The term of this Agreement is month to month, and You may terminate upon thirty (30) days notice by sending an email to EmailDelivered at support [at] emaildelivered.com or by sending written notice to 1732 South Congress Avenue, West Palm Beach, FL 33461. Fees paid in advance will not be refunded.
- We may, in our sole discretion, terminate or disable Your account or Your access to the Platform, remove all or a portion of Your content at any time, with or without cause, with or without notice, and without refund. If we determine, in our sole discretion, that Your email practices are non-compliant or reflect poorly on the reputation of EmailDelivered, we reserve the right to terminate Your account immediately. No refunds will be paid.
- We have the right to delete any of Your data immediately following termination.
- If You wish to recommence use of the Platform following termination (whether terminated by You or by EmailDelivered), You will be charged a Setup Fee and may be required to pay up to six (6) months’ fees in advance, in our sole discretion.
- Upon termination of Your account by You or by us, this Agreement and any rights or licenses granted to You hereunder, shall immediately terminate.
- Use of Platform
- Limitations on Use. You acknowledge the following in connection with Your use of the Platform:
- You will not co-brand, frame, or link to the Site or the Platform without the express prior written permission of EmailDelivered. “Co-branding” means displaying a name, logo, trademark, or other means of attribution or identification of any party in a manner reasonably likely to give a user the impression that such other party has proprietary rights in the Platform. You will provide reasonable assistance to EmailDelivered to prevent and terminate any unauthorized co-branding, framing, or linking associated with Your use of the Platform.
- You will use a single IP address and domain name with each EmailDelivered account.
- You will not copy any features or functionality from the Platform or use them for any purpose other than through Your use of the Platform itself.
- You will not to hold Yourself out as being endorsed by or affiliated with EmailDelivered.
- You will comply with all applicable state and federal law and regulations with respect to Your use of the Platform.
- You will not to attempt to gain, either directly or indirectly, unauthorized access to the Platform or to EmailDelivered’s database or computer systems.
- You will not engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Platform or the Site.
- Remote Access. You may from time to time provide our personnel or agents with remote access to Your computers and other systems for the purpose of troubleshooting issues that arise in Your use of the Platform. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by us or our personnel or agents.
- Resolution of Deliverability Issues.
- You expressly authorize EmailDelivered to act on Your behalf for the limited purpose of resolving deliverability issues with Internet Service Providers (“ISPs”) and Email Service Providers (“ESPs”) and their affiliates, for the limited purpose of resolving email deliverability issues. You further expressly authorize EmailDelivered to release information related to Your account to third parties for this limited purpose. ISPs and ESPs we work with in this capacity include: Hotmail.com, MSN.com, Yahoo.com, Gmail.com, AOL.com, Comcast.com, and Charter.net. In our sole discretion, we may work with smaller providers, but we cannot guarantee support for all providers.
- You agree to provide reasonable cooperation and assistance to EmailDelivered in our efforts to resolve any deliverability issues on your behalf with ISPs and ESPs.
- You understand and agree that this Section 3.3 is subject to the limitations and disclaimers set forth in Sections 7 and 8 of this Agreement.
- Export of Services or Technical Data. You may not remove or export from the United States or allow the export or re-export of the Platform, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
- Your Information
- Account Information. You are responsible for maintaining the security of Your EmailDelivered account, passwords, and files. We will accept the instructions of any individual who claims to be authorized to direct changes to Your EmailDelivered account so long as such person presents Your username and password or provides other appropriate account identifying information, as determined by us in our sole discretion, by email or by phone, or through a Third Party Service, if any, through which You access the Platform. You will be solely responsible and liable for any activity that occurs under Your username and we will not be responsible for the actions of any individuals who misuse or misappropriate Your contact lists or other assets using Your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorized use of Your EmailDelivered account or any other breach of security.
- User Information. We will also obtain any information You provide to us in connection with the use of the Platform. We acknowledge Your ownership rights in such information. We will never sell or rent Your contact lists, content, or phone numbers to anyone without Your permission, and we will never use Your contact lists, content, or phone numbers for marketing or promotional purposes or for any purpose other than providing our products and services. In the event we revise the policy described in this Section 4.3, we will provide advance notice of such revision.
- Intellectual Property
- Restrictions. You 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, or found at or through the Site or the Platform or any software, documentation, or data related to the Platform (“Software”); remove any proprietary notices or labels from the Site or the Platform or any Software; modify, translate, or create derivative works based on the Platform or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform or any Software.
- EmailDelivered Proprietary Rights. You acknowledge that we, or our suppliers, own all proprietary rights in the Site, the Platform and the Software, including, but not limited to, any patents, trademarks, service marks, and copyrights.
- Your Proprietary Rights. You represent and warrant to us that You will not use any content in connection with Your use of the Platform unless You are the owner of all proprietary rights in such content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
You agree to defend, indemnify, and hold harmless EmailDelivered, its subsidiaries, affiliates, successors, assigns, directors, officers, agents, employees, service providers, and suppliers (collectively, the “Indemnitees”) from and against all claims, losses, damages, suits, fees, judgments, costs, and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred in responding to such Claims, that Indemnitees may suffer or incur arising out of or in connection with any breach of the terms of this Agreement.
- Warranty Disclaimer; Remedies; Release
YOU AGREE THAT THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE PLATFORM AND ANY RELIANCE BY YOU UPON THE PLATFORM, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM IN COMPLIANCE WITH THE LICENSE AND TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES, AND WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF THE SAME.
WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (i) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANYONE OTHER THAN US, (ii) ANY CONTENT PROVIDED BY ANY THIRD PARTY OR (iii) ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE, OR OTHER CONTENT AVAILABLE THROUGH THE PLATFORM OR OBTAINED FROM A THIRD PARTY.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN TWO (2) YEARS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE PLATFORM SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE PLATFORM.
TO THE EXTENT THE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILTY RELATED TO ANY CONTENT POSTED IN ANY MATERIALS YOU SEND USING THE PLATFORM AND FROM ANY CLAIMS RELATED TO THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS.
- Limitation of Liability
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF EMAILDELIVERED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EMAILDELIVERED OR ANY OF ITS SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “EMAILDELIVERED”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES, EVEN IF EMAILDELIVERED WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF EMAILDELIVERED TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 6 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY EMAILDELIVERED TO YOU IN THAT 6 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that EmailDelivered has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
- Third-Party Services
- Compliance with Third-Party Terms. You agree to abide by the terms and conditions of any applicable Third Party Service. Notwithstanding the foregoing, You will abide by this Agreement regardless of anything to the contrary in Your agreement with any third party, and You will not use such Third Party Service to avoid the terms and conditions set forth in this Agreement.
- Third-Party Services Subject to Termination. We may terminate any Third Party Service’s ability to interact with the Platform at any time, with or without notice, and in our sole discretion, with no liability to You or to the third party. Any Third Party Service may take actions to impact our ability to make available some or all of the features of the Platform at any time, with or without notice, and we will not be liable to You or to the third party for any such actions. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature, or reliability of, any Third Party Services.
- No Endorsement. In no event will any reference to any third party or third party product or Third Party Service be construed as an approval or endorsement by us of that third party or of any product or service provided by such third party.
- Governing Law; Venue. This Agreement will be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Platform will be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
- Notices. Any notice to You will be effective when sent to the last email or physical address You have given us. Any notice to us will be effective when delivered to support [at] emaildelivered.com or 1732 South Congress Ave., Palm Springs, FL 33461.
- Force Majeure. We will not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the Internet or any third party Internet service providers.
- Notification of Security Breach. In the event of a security breach that may affect You, or individuals listed on one or more of your email distribution lists (each a “List”), we will notify You of the breach and provide a description. If we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
- Nondisclosure. Each party shall retain in confidence all proprietary and confidential information transmitted to the other that the disclosing party has identified in writing, or orally and then subsequently identified in writing, as being proprietary or confidential, and will make no use of such information except under the terms and during the Term of this Agreement. During the term of this Agreement, and after the termination of this Agreement, we will use all reasonable precautions to prevent your distribution lists from being acquired by unauthorized persons. We will not share (unless required by law), sell or otherwise distribute the confidential information in your account. You agree to use all reasonable precautions and take all necessary steps to prevent our confidential information, data, scripts, object code, source code, programs, business plans, business models, business concepts, communications, and any and all further confidential information from being acquired by unauthorized persons, and to take appropriate action, by instruction, agreement, or otherwise, with regard to all persons permitted access to our confidential or proprietary information, in order to ensure our confidential or proprietary information is protected. You will not disclose any of our confidential information to any person for any purpose other than as provided in this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (a) it has rightfully received from another party prior to its receipt from the disclosing party; (b) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence, (c) enters the public domain or becomes generally known to the public by some action other than breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party. Each party shall safeguard proprietary and confidential information disclosed by the other party using the same degree of care it uses to safeguard its own proprietary and confidential information but, in no event, shall use less than a reasonable degree of care. Each party's obligation under this paragraph shall extend for a period of three (3) years following termination or expiration of this Agreement.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Attorney Fees. You will pay on demand all of EmailDelivered’s reasonable attorney fees and other costs incurred by EmailDelivered to collect any fees or charges due EmailDelivered under this Agreement.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
- Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
- Survival. Rights and obligations under this Agreement which by their nature should survive, including but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, will remain in effect after termination or expiration hereof.
- Amendment. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or by posting revisions of the Agreement at http://emaildelivered.com/terms-of-service/ by EmailDelivered. You are responsible for checking for modifications to this Agreement on a regular basis. Your use of the Platform after the posting of modifications to this Agreement constitutes assent to any modifications by EmailDelivered. If You do not agree to changes implemented by EmailDelivered, or to any of the terms in this Agreement, Your only remedy is to terminate this Agreement.