Terms of Use

EnterpriseMailer Policies

Definitions

The following section defines the terms used in this EnterpriseMailer Terms of Service policy.


Acceptable Use Policy

Refers to EnterpriseMailer's acceptable use policy.


Agreement

This term refers to the email marketing services agreement.


Customer Content

This refers to any intellectual property provided by customer or its agents for inclusion in the email marketing services, including, but not limited to, any data, images, programming code, photos, illustrations, graphics, audio clips, video clips, or text. The customer will deliver the customer content to EnterpriseMailer in an electronic file format specified and accessible by EnterpriseMailer (e.g., .txt, .gif, .jpg, .html). EnterpriseMailer will only use the customer content in the form provided by the customer. EnterpriseMailer will use the customer content solely to provide the email marketing services. All intellectual property rights in the customer content are and will remain the sole and exclusive property of the customer or the customer's third party licensors.


Proprietary or Confidential Information

This refers to all information or material that:
  1. Gives that party some competitive business advantage or the opportunity of obtaining advantage or the disclosure of which could be detrimental to the interests of that party; or
  2. Which is either:
    1. Marked "confidential", "restricted", or "proprietary information" or other similar marking,
    2. Known by the parties to be considered confidential and proprietary, or
    3. From all the relevant circumstances should reasonably be assumed to be confidential and proprietary. EnterpriseMailer's proprietary or confidential information will remain the sole and exclusive property of EnterpriseMailer. Customer's proprietary or confidential information will remain the sole and exclusive property of customer.


Neither party will have any obligation with respect to confidential information which:

  1. Is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party;
  2. Was previously known to the receiving party or rightly received by the receiving party from a third party;
  3. Is independently developed by the receiving party; or
  4. Subject to disclosure under court order or other lawful process. Documentation means written materials describing the email marketing services as are provided by EnterpriseMailer to customer under this agreement.


Intellectual Property

All inventions (whether or not eligible for protection under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not eligible for protection under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not eligible for protection under trade secret laws), and all other subject matter eligible for protection under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful art, combinations, discoveries, formulae, manufacturing techniques, technical developments, artwork, software, programming, applets, scripts, and designs. Email marketing services means the Internet related services to be provided by EnterpriseMailer to the customer. EnterpriseMailer may, in its sole discretion, retain third parties to provide any of the email marketing services.


Customer Responsibilities

This section explains the use of customer content in the email marketing services, including use of intellectual property and this agreement's termination terms.


Use of Intellectual Property

At EnterpriseMailer's request, the customer will promptly provide EnterpriseMailer with digital-ready or electronic copies of all customer content reasonably necessary for EnterpriseMailer to provide the email marketing services under this agreement. The customer hereby grants to EnterpriseMailer a limited, non-exclusive, non-transferable, royalty free license to use customer content in connection with marketing, selling, and providing email marketing services for the customer. EnterpriseMailer will only use the customer content as permitted by customer. Upon termination of this agreement, EnterpriseMailer will, at its option, either destroy or return to customer all customer content. No additional rights to the customer content are granted to EnterpriseMailer under this agreement.


Termination

This Agreement will terminate:
  1. On the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this agreement, unless the breach is cured before that day; or
  2. Upon written notice by either party, immediately, if
  3. A receiver is appointed for the other party or its property;
  4. The other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or
  5. Any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.


From and After Termination

Upon termination by the customer, all past due sums owed to EnterpriseMailer by the customer, and/or any contracted third party of the customer, will immediately be due and payable upon the effective date of termination. Licenses granted hereunder will terminate. Upon termination hereunder, each party will immediately cease use of all proprietary or confidential information belonging to the other party and will irretrievably delete and/or remove such items from all computer hardware and storage media, including backups.


Termination/Suspension

EnterpriseMailer may suspend or terminate (as appropriate) use of the email marketing services at any time without prior notice in order to:
  1. Prevent damages to, or degradation of, EnterpriseMailer's Internet network integrity;
  2. Comply with any law, regulation, court order, or other governmental request or order which requires immediate action;
  3. Otherwise protect EnterpriseMailer from potential legal liability; or
  4. Address a violation of the acceptable use policy. EnterpriseMailer will use commercially reasonable efforts to notify the customer of the reason(s) for the suspension/termination action as soon as reasonably practicable after any action. If suspended, EnterpriseMailer will promptly restore use of the email marketing services to the customer as soon as the event giving rise to the suspension has been resolved.


Confidentiality

The parties will hold each other's proprietary or confidential information in strictest confidence. The parties agree not to make each other's proprietary or confidential information available in any form to any third party or to use each other's proprietary or confidential information for any purpose other than as specified in this agreement. Each party agrees to take all reasonable steps to ensure that proprietary or confidential information of either is not disclosed or distributed by its employees, or consultants in violation of the provisions of this agreement.


Force Majeure

Neither party will be liable for any failure or delay in performance under this agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.


Notices

All notices, demands or consents given under this agreement will be provided in writing and will be deemed given when delivered personally, or twelve (12) days after deposit in the mail (certified or registered mail), or four (4) days after being sent by courier, or immediately after being sent by facsimile, to the receiving party at the address stated on page one of this agreement or at such other address given by either party to the other in writing.


General Waiver

No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.


Servability

If any part of this agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provisions and the remainder of this agreement will remain in full force.


Database Information

EnterpriseMailer has the right to access for its business purposes information collected from end users and clients in connection with rendering the email marketing services.


Choice of Law and Venue

This agreement is governed by and construed in accordance with the laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this agreement. All actions or proceedings arising in connection with this agreement will be tried and litigated exclusively in the state or federal (if permitted by law and a party elects to file an action in federal court) courts located in San Mateo, California. This agreement constitutes the entire agreement between the parties and supersedes all prior or simultaneous representations, negotiations, and agreements, whether written or oral, and all industry customs or trade practices. Neither party has executed this agreement by reason of or in reliance on any representations which are not fully stated in this agreement.


Modification

This agreement may be modified only by writing that refers to this agreement and is signed by both parties.


Allocation of Risk

Risk allocation is reflected in the pricing of the email marketing services and is an essential element of the basis of the bargain between the parties.


Survival

No action by the customer or EnterpriseMailer arising under this agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.


Assignment

Either party may not assign this agreement without the prior written consent of the other except as follows:
  1. EnterpriseMailer may assign this agreement provided the assignment
    1. Is in writing, and
    2. States that the assignee is accepting all obligations of EnterpriseMailer under this agreement and agrees to be bound by and discharge the agreement's terms, conditions, and obligations as if it were the original party hereto.
  2. The customer may assign this agreement to a parent or subsidiary corporation, or in the event of an affiliation, merger, acquisition, sale or disposition of substantially all of its assets, provided such assignment
    1. Is in writing and
    2. States that the assignee is accepting all obligations of customer under this agreement and agrees to be bound by and discharge each of the agreement's terms, conditions, and obligations as if it were the original party hereto.


Independent Contractor

The customer acknowledges that they are at all times acting as an independent contractor under this agreement and except as specifically provided herein, not as an agent, employee, or partner of EnterpriseMailer. Neither party has authority, express or implied, to make any obligation or commitment on behalf of the other.


Attorney's Fees

In any action/arbitration brought under this agreement, the prevailing party will be entitled to recover its actual costs and reasonable attorneys' fees and all other litigation costs, including expert witness fees, and all actual attorneys' fees and costs incurred in connection with the enforcement of a judgment arising from any action or proceeding.

Acceptable Use Policy

The following policy governs the use of the EnterpriseMailer Service by User. User will comply with the terms and spirit of the Agreement.

  • (a) User shall not use the EnterpriseMailer Service for spamming. Spamming includes, but is not limited to:
    • 1. the bulksending of unsolicited messages, or the sending of unsolicited e-mails which provoke complaints from recipients,
    • 2. the sending of junk mail,
    • 3. the use of distribution lists that include people who have not given specific permission to be included in such distribution process,
    • 4. posting commercial ads to USENET newsgroups that do not permit it,
    • 5. posting articles containing binary encoded data to a non-binary newsgroups,
    • 6. excessive and repeated posting off-topic messages to newsgroups,
    • 7. excessive and repeated cross-posting,
    • 8. e-mail harassment of another Internet user or users, including but not limited to, transmitting any threatening, libelous or obscene material, or material of any nature which could be deemed to be offensive, and
    • 9. the e-mailing of age- inappropriate communications or content to anyone under the age of 18. EnterpriseMailer has in place a spam monitoring and control system to reduce spam sent to and from Users. EnterpriseMailer shall make reasonable attempts to respond to complaints made by User regarding the receipt of spam or other harassing e-mail or, in the case of a User under the age of 18, complaints from such User or from such User's parent or guardian regarding the receipt of spam, other harassing e-mail, or e-mail containing any age-inappropriate communications or content.
  • (b) User shall not use the EnterpriseMailer Service in a manner which violates any city, state, national or international law or regulation, or which fails to comply with accepted Internet protocol. User shall not attempt to interfere in any way with EnterpriseMailer networks or network security, or attempt to use the EnterpriseMailer Service to gain unauthorized access to any other computer system.
  • (c) User shall at all times provide EnterpriseMailer with accurate information. User shall immediately notify EnterpriseMailer of any security breach in or unauthorized use of User's account. User shall not interfere in any way with another User's use of, or EnterpriseMailer's provision of the EnterpriseMailer Service. User shall not resell, rent, lease, grant a security interest in, or make commercial use of the EnterpriseMailer services without the express written consent of EnterpriseMailer.
  • (d) User agrees to use EnterpriseMailer E-mail addresses containing the names of colleges, universities, celebrities, entertainment properties, businesses, or teams for personal use only and not for any commercial purpose.
  • (e) User agrees not to transfer E-mail address for gain or otherwise. Transfer of such E-mail address will result in termination of contract with end user.

Title

Title, ownership rights, and intellectual property rights in all content and material that is part of, contained in, or accessed through the EnterpriseMailer Service, and provided by either EnterpriseMailer or sponsors or any other content provider shall remain the sole property of EnterpriseMailer and/or its sponsors or any other content provider. User acknowledges and agrees that certain college, university, team, celebrity or business names contained within EnterpriseMailer E-mail addresses may represent protected trademarks and service marks. Such content and materials are protected by the copyrights, trademark, service mark and patent laws and treaties.

Indemnification

User agrees to indemnify and hold EnterpriseMailer and its licensors, parents, subsidiaries, affiliates, network partner sites, officers and employees ("Affiliated Parties"), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User's use of the EnterpriseMailer Service, the violation of the Agreement by User, or the infringement by User, or by any other user of the EnterpriseMailer Service using User's computer, of any intellectual property or other right of any person or entity, or as a result of any threatening, libelous, obscene, harassing or offensive material contained in any User communications.

Disclaimer of Warranty

EnterpriseMailer EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE EnterpriseMailer SERVICE. THE EnterpriseMailer SERVICE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE PERFORMANCE OF, OR ARISING OUT OF THE USE OF THE EnterpriseMailer SERVICE IS BORNE BY USER. EnterpriseMailer MAKES NO WARRANTY REGARDING ANY GOODS, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE USE OF THE EnterpriseMailer SERVICE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO USER AND USER MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.

Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EnterpriseMailer OR ITS LICENSORS OR RESELLERS BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OF OR THE INABILITY TO USE THE EnterpriseMailer SERVICE, THE PERFORMANCE OF EnterpriseMailer SERVICE, OR DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFIT, BUSINESS STOPPAGE, LOSS OF DATA OR BUSINESS INFORMATION, COMPUTER DAMAGE, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS TO OR CHANGES MADE TO USER'S TRANSMISSIONS OR DATA, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL EnterpriseMailer BE LIABLE FOR ANY DAMAGES IN EXCESS OF WHAT EnterpriseMailer RECEIVED FROM USER FOR THE EnterpriseMailer SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO USER.

Viruses

The virus scanner, provided as a premium service, may not be able to detect or repair all viruses and variants. Please be aware that there is a risk involved whenever downloading email attachments to your computer or sending email attachments to others and that, as provided in these Terms of Service, neither EnterpriseMailer nor its licensors are responsible for any damages caused by your decision to do so.

Storage

EnterpriseMailer assumes no responsibility for the deletion or failure to store, deliver or timely deliver messages. Without limiting the foregoing sentence, EnterpriseMailer may, from time to time and without notice, set limit(s) on the number of messages a member may send, store, or receive through the service, and EnterpriseMailer retains the right to delete any E-mails above or below such limit(s) as well as to deactivate any account which is over such limit(s) without any liability whatsoever, and User hereby releases EnterpriseMailer from any such liability. Any notice provided by EnterpriseMailer to Users in connection with such limit(s) shall not create any obligation to provide future notification regarding any change(s) to such limit(s).

Infringement

User represents that the user id selected by the User, when used alone or combined with a second or third level domain name, does not interfere with the rights of any third party and is not being selected for any unlawful purpose. User acknowledges and agrees that if such selection does interfere with the rights of any third party or is being selected for any unlawful purpose, EnterpriseMailer may immediately suspend the use of such EnterpriseMailer E-mail address, and User will indemnify and hold EnterpriseMailer harmless, in accordance with the Indemnification section above, for any claim or demand against EnterpriseMailer that arises out of such selection. User acknowledges and agrees that neither EnterpriseMailer nor any of its licensors shall be liable to User in the event EnterpriseMailer is ordered or required, as a result of a court order or legal settlement, or contractual requirement with any licensor, to desist from using or permitting the use of a particular domain name as part of a EnterpriseMailer E-mail address. If as a result of such action, User loses an E-mail address, the User's sole remedy shall be the receipt of a replacement EnterpriseMailer E-mail address.

Modification

EnterpriseMailer reserves the right to modify the EnterpriseMailer Service as described in the Agreement and on the site, and to change the terms and conditions of the Agreement at any time, without notice. Continued use of the EnterpriseMailer Service after such modifications shall be deemed an acceptance by the User to be bound by the terms of the modified Agreement.

Termination

EnterpriseMailer Service may be terminated for any reason, in whole or in part, effective immediately, by either EnterpriseMailer at any time without notice and without any liability whatsoever, and User hereby releases EnterpriseMailer from any such liability. Upon termination, User's right to use the EnterpriseMailer Service immediately ceases, and EnterpriseMailer is not obligated to forward any unread or unsent messages to User or any third party. EnterpriseMailer shall not be liable to User or any third party for termination of the EnterpriseMailer Service. In the case of a terminated paid EnterpriseMailer Service ("Premium Service"), upon written request to EnterpriseMailer, User shall receive at EnterpriseMailer's option, either i) reimbursement of the pro-rata portion of the amount paid for the period remaining on User's account for the terminated Premium Service; or ii) credit for another Premium Service equivalent to the pro-rata portion of the amount paid for the period remaining on User's account for the terminated Premium Service. There shall be no reimbursement or credit if the EnterpriseMailer Service is terminated due to User's violation of the terms of this Agreement. EnterpriseMailer reserves the right to terminate User's E-mail address in the event that EnterpriseMailer's rights to use certain domain names or E-mail addresses terminate or expire. In addition, EnterpriseMailer retains the right, at EnterpriseMailer's sole discretion, to terminate any and all parts of the EnterpriseMailer Service provided to User, without refunding User for any annual fees paid but not yet accrued, if it determines that User has failed to comply with any of the terms of the Acceptable Use Policy. If EnterpriseMailer determines that User has failed to comply with any of the terms of the Acceptable Use Policy above, EnterpriseMailer shall, if and when it deems it appropriate, (1) facilitate criminal prosecution against such User by referring User's spamming activity to the appropriate legal authorities, and (2) bring a civil action against such User, who shall be liable to EnterpriseMailer for any direct, indirect, special, incidental, or consequential damages incurred by EnterpriseMailer as a result of User's spamming or other prohibited activity.

Severability

If any provision hereof shall at any time be held to be void, invalid or unenforceable, such provision shall be construed as severable and shall not in any way affect or render void, invalid or unenforceable any other provision of this Agreement, and this Agreement shall be carried out as if such void, invalid or unenforceable provision were not part of this Agreement.

Action Limit

User and EnterpriseMailer agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

No Waiver

No waiver on the part of EnterpriseMailer to exercise, and no delay in exercising, any right, power or provision hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or provision hereunder preclude the exercise of that or any other right, power or provision.

EnterpriseMailer Successors and Assigns

This Agreement shall be binding upon and inure to the benefit of any EnterpriseMailer successor companies or assigns.

Headings

The headings in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision thereof.

Entire Agreement

This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether oral or written, relating to the subject matter hereof.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to agreements executed and performed wholly within the State of California.