Email
Marketing Services Terms and Conditions
This Agreement ("Agreement") contains the terms
and conditions that apply to your use of the Xpertcommerce Email Marketing
Services (the "Services"). As used in this Agreement, "Xpertcommerce",
"we", "us", or "our" refers to Xpertcommerce and
"you" or "your" refers to the person who sends one or more
emails using the Services, and performs the administrative functions of the
Service. The Services are offered to you conditioned on your acceptance without
modification of this Agreement. Your use of the Services constitutes your
acceptance to this Agreement.
Modifications of Terms and Conditions
We may modify any of the terms and conditions contained in
this Agreement, at any time and in our sole discretion, by posting a change
notice or a new agreement on our Website located at www.xpertcommerce.co.uk or any such
successor Website. You are responsible for regularly reviewing these terms and
conditions. Continued use of the Services after any modification shall
constitute your consent to such modification.
Limitations On Use
You agree that you have the full authority and right to
enter into this Agreement and that you are at least 18 years of age. You also
agree that you will not use the Services to transmit, disseminate or upload:
·
Unlawful, harassing, libelous, tortuous,
abusive, threatening, or obscene communications of any kind.
·
Materials that infringe
or violate any third party's copyright, trademark, trade secret, privacy or
other proprietary or property right, or that could constitute a criminal
offense, give rise to civil liability or otherwise violate any applicable law
or regulation.
·
Objectionable materials, including without
limitation, content that contains blatant bigotry, racism, or hatred, or that
promotes illegal activities or physical harm against anyone.
·
Spam, chain letters, junk mail or any other
type of unsolicited mass e-mail to people or entities who have not agreed to be
part of such mailings.
·
Viruses or other harmful, disruptive or
destructive files.
·
Content containing nudity or pornographic
material of any kind to people under age 18, or to anyone on lists that are not
limited to people age 18 or older.
·
We will not be responsible for any
consequence loses due to the use of service by the customer.
·
Our liability is limited to USD$10.00 for
any kind of loss arising out of the services being provided by us being used by
the clients for what so ever reason irrespective of the nature of services.
You further agree: (a) that you will not disrupt or
interfere with another user's use or enjoyment of the Services; (b) that you
will not use or attempt to use another person's or entity's account, service or
system without authorisation from the owner, nor will you disrupt or interfere
with the security of, or otherwise abuse, the Services, system resources or
accounts, or any servers or networks connected to the Services; (c) that you
will not attempt to obtain unauthorised access to Services, or to private lists
on the Services; (d) that you are solely responsible for your actions in
relation to Services, and for any communications transmitted under your
account; (e) that you will not forge header or address information or otherwise
impersonate another or create a false identity; (f) that you will not
systematically extract, collect or harvest, through electronic means or
otherwise, any data or data fields, including without limitation, lists, list
owner identities, or email addresses, from our Website; (g) that you will not
disrupt the normal operations of the Services or cause any substantial change
in the usual content or frequency of emails sent using the Services; (j) that
you will comply with all applicable local, state, national and international
laws and regulations, including without limitation those related to privacy and
data collection. You agree that we may in our sole discretion remove any
material that appears to violate any of the foregoing, and may immediately
limit or terminate your account or access if it appears you have violated any
of the provisions as described herein.
Term of the Agreement
The term of this Agreement will begin upon your first use
of the Services and will end when terminated by either you or us as described
herein. We may terminate this Agreement at any time, with or without cause, and
with or without notice. In the event that you would like to terminate this
Agreement, you will need to send such notice of termination via email to Xpertcommerce.
Your termination of the Agreement will be effective upon the last day of the
month in which we received such notification.
Xpertcommerce Email Marketing Communication
We shall have the right to communicate with you via email,
receipt of which by you is considered by Xpertcommerce essential to our
provision of service. You may unsubscribe from such communication at any time.
Disclosure of Information
We will not disclose personally identifiable information
about you or your private communications (i.e., content transmitted on private,
non-public lists) to third parties, without your permission, unless we believe
such disclosure is reasonably necessary to: (1) comply with the law or legal
process; (2) protect or defend our rights or property or that of others; (3)
enforce this Agreement; (4) respond to claims that the contents of any
communications violate the rights of others; or (5) as otherwise provided in
the Agreement. From time to time, we will disclose aggregate user demographic
data to third parties. We may access your Lists and related communications for
technical processing and to address technical problems or service complaints.
Proprietary Rights
We will not sell, trade, rent, lend or give email
addresses that you supply us to anyone else for any
purpose, nor will we use the addresses you supply us for any purpose other than
supplying the Services to you. It is understood that it is possible that some
of the addresses you supply us may already be on lists that we own and that we
have the right to mail to such addresses.
We do not claim ownership of the materials you provide to
us for purposes of using the Services and which were created by you or on your
behalf. By transmitting such materials for distribution to your Lists, you
grant us a worldwide, royalty-free, and non-exclusive license to reproduce,
modify, adapt and publish such materials solely for the purposes of providing
the Services to you.
Jurisdiction
For any dispute or legal matters the
jurisdiction will be
Disclaimer of Warranties
THE SERVICES ARE PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS
AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE
LAW, WE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT MAKE ANY WARRANTY THAT THE
SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE
CORRECTED; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY
INFORMATION OBTAINED THROUGH USE OF THE SERVICES. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL
CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY
TO YOU.
Limitations of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE, SHALL XPERTCOMMERCE OR ITS PARENTS, SUBSIDIARIES, AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE
OR THE INABILITY TO USE THE SERVICES OR FOR THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS AND SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO
BY MEANS OF OR THROUGH THE SERVICES, OR RESULTING FROM UNAUTHORISED ACCESS TO
OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT
OR RECEIVED OR NOT SENT OR RECEIVED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR
LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY
FAILURE TO DELIVER, HOLD OR STORE EMAIL TRANSMITTED THROUGH THE SERVICES. IF
YOU ARE DISSATISFIED WITH THE SERVICES, YOUR EXCLUSIVE REMEDY IS TO DISCONTINUE
USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE
ABOVE MAY NOT APPLY TO YOU.
Without limiting any of the foregoing, we are not
responsible for any of your materials and data residing on our network
hardware. You are responsible for backing-up your materials and data that may
reside on our network hardware, whether or not such materials and data are
produced through the use of the Services. It is your responsibility to take the
necessary steps to ensure your primary means of business is maintained. In no
event will we be liable to you for more than the actual dollar amount that you
paid for the use of the Services during the term of this Agreement.
Indemnification
You agree to indemnify, defend and hold harmless Xpertcommerce,
its parents, subsidiaries, affiliates, officers, directors, employees, agents,
and suppliers, and their respective affiliates, officers, directors, employees,
and agents, from any claim, action, demand, or damage, including reasonable
attorney's fees, made by any third party arising out of or related to your use
of the Services or your violation of this Agreement, including without
limitation the infringement by you or any other user of your account, of any
intellectual property or other right of any person or entity. We may, at our
sole discretion, assume the exclusive defense and control of any matter subject
to indemnification by you. The assumption of such defense or control by us, however,
shall not excuse any of your indemnity obligations.