DESCRIPTION OF OFFERED SERVICES
The Services described are provided on an AS IS and AS AVAILABLE basis. PrimeSender disclaims any and all responsibility and liability for the availability, timeliness, security or reliability of the Services which are made available for your use. The Service is available only to persons who can form legally binding contracts under applicable law. If you are using the Service 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 Service is not available to individuals under the age of 18. If you do not qualify to use the Service, please do not use the Service.
Description of Service:
PrimeSender Service: PrimeSender is an email marketing service used to build and maintain a subscriber base. Users of the Service can easily create professional quality marketing emails and manage their subscribers and campaigns within their own account. The Service is especially useful for small businesses, organizations and non-profits by providing powerful tools they need to be competitive.
Free Plan: The Free Plan offers Customers free use of the email services so long as Customers unique subscribers in their account with us number 500 or less. Each unique email address stored by Customer in their account with us shall be deemed to be one (1) unique subscriber. Customer may send unlimited emails to Customer’s 500 or less subscribers under our Free Plan. If Customers unique subscribers exceed 500, then Customer will be notified to upgrade to one of our low-cost Tiered Service Plans. The Tiered Service plan charges are based upon the number of unique subscribers contained in Customer’s account with us and the corresponding pricing tier into which such number falls as described above. Our tier based pricing allows for sending unlimited emails, provided that Customer’s total unique subscribers are not more than 50,000 subscribers.
Tiered Service Plan: The Tiered Service Plan offers Customers monthly tiered fee plans as described in the email price list posted on the website. The charges are based upon the number of unique subscribers contained in the Customer’s account and the corresponding pricing tier into which such number falls. A unique email address stored by Customer in their account with us shall be deemed to be one (1) unique subscriber. Our tier based pricing allows for sending unlimited emails, provided that Customer’s total unique subscribers are not more than 50,000 subscribers. Customers with more than 50,000 unique subscribers shall be subject to overage fees determined by us if the total number of emails sent by Customer in any one month is greater than four (4) times the number of maximum allowed unique subscribers in Customer’s paid tier.
Using the Services. When uploading contacts to your Customer account, if you have our Free Plan, a notification will appear if the free maximum of 500 subscribers or contacts are uploaded. The notification will inform you as the Customer that the free maximum of 500 unique subscribers has been reached and inform you that if you wish to upload more contacts or subscribers, you must upgrade your plan and select a Tiered Service Plan and submit your billing information. If you exceed the free 500 contacts or subscribers, your account may be suspended until it is upgraded or contacts or subscribers are removed until the number is 500 or less.
Upgrading. To upgrade, simply click on the associated link to select a monthly Tiered Plan, submit your billing information, and you will be billed for the first month of your selected Tiered Plan and automatically billed monthly thereafter based on the highest pricing tier reached in the prior month. Once upgraded, if there are one or more months when your account has 500 or less subscribers, then your account will revert to the Free Plan and there will be no charge until and unless your subscriber count again exceeds 500, and then you will again be billed monthly according to the highest pricing tier reached in the prior month at then-current pricing structure posted on our website.
The Service Plans must be paid in advance prior to Customer’s usage of the Service. Access to the Service shall be enabled once Customer remits payment. Access to the Service shall be disabled should Customer become delinquent in paying the monthly service fees if Customer is purchasing Email Services on a monthly Tiered Service Plan . If Customer is on a monthly Tiered Service plan, Customer’s credit card will be charged on the first day of each subsequent month following the initial month of registration. If we modify our posted pricing structure, which will be posted on our website, we will also use reasonable efforts to notify Customers prior to charging modified prices.
Payment. Customer authorizes us to keep Customer’s credit card information on file and charge such credit card for the continuing usage of the existing Service or the future usage of the Service. Customer's account will be disabled if we are unable to charge Customer's credit card for Service rendered or future Service selected. We will attempt to notify Customer of our intent to suspend access to the Service prior to such suspension taking effect.
PrimeSender.com Website: Users can create an account on the PrimeSender.com website to manage email subscribers and data. Tools on the site allow users to build and distribute professional marketing emails and generate reports on their campaigns.
The price list for the Service is posted on our Web site at www.PrimeSender.com. Prices are in U.S. Dollars and may change at any time at our sole discretion. A Customer is responsible for knowing what prices are in effect at all times. We will use reasonable efforts to notify Customers of any changes to the price list prior to such changes taking effect.
Authorized mailing lists. You may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You may only use permission based lists. A permission based list is defined as a list in which each entity on the list is a person or organization that has explicitly granted their permission to receive emails, surveys or other communications from you. You are solely responsible for ensuring that email campaigns do not generate a number of spam complaints in excess of industry norms. PrimeSender, in its sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. PrimeSender may terminate your use of the Service if PrimeSender determines that the level of spam complaints exceeds industry norms.
Your Responsibilities when using the Services
Unsubscribe Link. You agree that each email sent by you in connection with the Service shall contain the PrimeSender "unsubscribe" link that allows a recipient to remove themselves from your mailing list. You are prohibited from sending email to any recipient who has clicked on the unsubscribe link. You shall process all unsubscribe requests within ten (10) days of request by email recipient. Failure to comply with this requirement may result in a termination of your account by PrimeSender, and all payments previously paid to PrimeSender shall be forfeited by you at the time of termination.
Identification. You agree and acknowledge that not all messages you send using this Service will be received by the intended recipients. You acknowledge and agree that you are the sole or designated "sender" as defined in the CAN-SPAM Act of any email message sent by you using the Service. You agree that the "from" line of any email message sent by you using the Service will accurately and in a non-deceptive manner identify your organization, your product and/or your service. In your use of the Service, you agree to represent you or your organization accurately and to not impersonate any other person, whether actual or fictitious.
Subject Lines. You agree that the "subject" line of any message sent by you using the Service will not contain any deceptive or misleading content regarding the overall subject matter of the email message. You agree to include in any email message sent by you using the Service your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service. You agree that in any email message sent by you using the Service you will not include any incentives that encourage a recipient to forward the email message to another recipient.
You are prohibited from using images within an email to:
- Sublicense, distribute, transfer or assign any images in connection with any other product except for a PrimeSender email;
- Reverse engineer, decompile, translate or dissemble any part of the Images;
- Remove any copyright notices, trademarks or watermarks from any place where it appears on the Images;
- Use the Images as part of another trademark, service mark or logo;
- Use the Images in any way that could be considered by a reasonable person to be defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to them, in the juxtaposition to accompanying text or images or otherwise;
- Use the Images in a manner that includes people as part of any sensitive subject matter, which shall be determined by PrimeSender in its sole discretion. Example of sensitive subject matters include, but are not limited to, mental and physical health issues, sexual activity or preferences, substance abuse, guns and weapons, crime, suicide, abortion, hate groups, political or religious fanaticism, etc .
- Post the Images online in downloadable format, post the Images on an electronic bulletin board, or enable the Images to be distributed via mobile telephone devices. Include the Images in any electronic template or application, including those that are web based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to website design, presentation templates, electronic greeting cards, business cards or any other electronic or printed matter;
- Download or store the Images on more than one computer at the same time;
- Use, reproduce, distribute or display the Images in connection with design template applications intended for resale;
- Use, reproduce, distribute or display the Images in connection with any goods or services intended for resale or distribution which primary value lies in the Image itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
- Take any action in connection with the Images that violates any law, regulation or statute in an applicable jurisdiction;
- Use the Images in an editorial manner, without the following credit adjacent to the Image: "© [Photographer's name] / [Name of the agency providing the Image].;
- Take any action in connection with the Images that violates or infringes the intellectual property or other rights of any person or entity, including, without limitation, the moral rights of the creator of the Images and the rights of any person who, or any person whose property, appears in the Images;
- Take any action in connection with the Images that would reasonably imply that the creator of the Images, or the persons or property appearing in the Images (if any), endorse any political, economic or other opinion-based movements or parties; or
- Use the Images in a way that places any person in the photo in a bad light or depicts them in a way that they may find offensive - this includes, but is not limited to:
- the use of Images in pornography;
- tobacco ads;
- ads for adult entertainment clubs or similar venues, or for escort or similar services;
- political endorsements; and
- uses that are defamatory, or contain otherwise unlawful, offensive or immoral content.
Footer. For every email message sent in connection with the Service, you acknowledge and agree that the Service shall automatically add an identifying footer stating "Powered by PrimeSender™" or a similar message, unless you have obtained specific authorization from PrimeSender to remove such identifying footer.
Your Account is Your Responsibility. You shall be solely responsible for securely maintaining your user name, password and other account information. PrimeSender may follow the instructions of any person who represents he is authorized by you to use or make any changes to the account, provided such person delivers the correct user name and password. PrimeSender shall have no liability to you for any unauthorized use of your account or the services provided hereunder.
PrimeSender prohibits you from sending email messages with content that is of the following nature:
- Messages that are in any way illegal such as sales of illegal substances, solicitation of escort services, or sales of any products or services that cannot be legally sold by you;
- Pornographic messages;
- Grossly offensive messages such as messages promoting hatred, bigotry, intolerance of religious beliefs, racism or any other messages that PrimeSender, at its sole discretion, may deem to be offensive;
- Includes images that are not expressly authorized by either PrimeSender or the owner of such images;
- Introduces any computer viruses, worms or software code that is detrimental to your recipients;
- Any messages that includes spam (See PrimeSender's Anti-Spam Policy); or
- Any messages that are in any way prohibited by applicable law would constitute a violation of applicable law or be inconsistent with community standards in any jurisdiction in which the recipient resides.
You agree to report to PrimeSender each complaint received from a recipient alleging that you have violated prohibitions against spam.
SERVICES, FEES, TERMINATION
Creating an account. When you complete the registration process, you create an account and agree to be bound by this TOU. If you do so on behalf of an entity of any kind, you are representing and warranting that you have the authority to accept this TOU on behalf of the entity, and the authority to bind the entity to this TOU. Your account allows you to participate in certain activities on the website. To create an account, you must select a login name and password. You may not use a login name that is used by someone else, and your login name cannot be vulgar, or otherwise offensive, or be used in any way that violates the TOU. You may not provide false information during the registration process. You must provide truthful and accurate information in creating your account. You are solely responsible for all activity on your account and for the security of your computer system or related system and agree to keep this information secret. You may not reveal your password to other users. You agree to indemnify and hold us harmless for any improper or illegal use of your account, including illegal or improper use by someone to whom you have given permission to use your account. Your account is at risk if you let someone use it inappropriately and your account in any of our Services is subject to termination if you or anyone using your account violates the TOU. If you believe your account has been accessed without your authorization, you must notify us immediately by contacting Customer Support.
Trials. Certain Customers may use the Service on a trial basis as specified on the Website when customer initially agrees to the use of the Service. Trial is limited to one per Customer per organization. A Customer who uses the Service on a trial basis shall be bound by the TOU and shall have a finite time period to use the Service according to the trial basis accepted. A Customer using the Service on a trial basis shall not exceed set limits for email credits in the applicable month related to the Email Service. Once the trial period has expired or the number of email credits has been depleted related to the Email Service, as applicable, the Customer must sign up for the Service and shall be subject to the payment terms outlined herein and shall pay for the Service according to the then-current email price list or Services pricing.
Your Content. PrimeSender.com does not claim ownership of any content you submit, post, transmit or share using the PrimeSender.com Service.PrimeSender.com disclaims any responsibility related to content, data, materials or files uploaded by you or other users. By uploading files, you are assuming full responsibility for the consequences of doing so. You are solely responsible for any and all conduct in entering, altering, modifying, sending or retrieving data, text information, screen names, graphics, photos, profiles, audiovisual clips, links or other content submitted, posted, displayed, transmitted or shared using your User Identification.
Termination and Cancellation. The term of this Agreement will be for such period of time until the Service is canceled or terminated. To cancel, contact Customer Service Mon. – Fri., 8:30 AM – 7:00 PM, Eastern Time. If calling from within the USA dial toll-free 1-888-565-7485. If calling from outside the USA dial +1 561-948-2944. You may also cancel the Service at any time through the Settings section of your online account. If you are enrolled in more than one Service or have more than one account, each must be canceled separately. This TOU will automatically terminate, other than specific provisions as noted herein, when you cancel your account or when we no longer provide the Service or your account is terminated as provided for herein this TOU.
Deletion of Data. Upon termination or cancellation of your account for any or no reason, PrimeSender may delete any of your archived data. Notwithstanding anything to the contrary elsewhere in this Agreement, all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, indemnity, warranty disclaimers and limitations of liability together with any other specified provisions as noted herein. Additional fees may apply if you choose to terminate your account or plan and subsequently choose to reactivate the account under a new pricing plan.
Inactive Accounts. At any time after the date of commencement of the Service by you, if you are on a Services pricing plan it will be deemed to be inactive when the end of the chosen period has lapsed and no further payments are remitted to PrimeSender to continue the Service. When an account is classified (at PrimeSender's sole discretion) as inactive, PrimeSender will use reasonable efforts to notify you by email. IF AN ACCOUNT REMAINS INACTIVE FOR 30 DAYS, THE ACCOUNT AND ITS DATA, INCLUDING CAMPAIGN RESULTS, MAY BE PERMANENTLY REMOVED FROM THE PRIMESENDER DATABASE.
No Refunds. All payments you make to us are non-refundable. Upon termination of your use of the Services by either party, you shall have no recourse against PrimeSender in relation to non-refunded funds, unused email credits or unused responses remaining (or time left) related to email subscriptions.
Remedies. You understand and agree that the cancellation of your account or a particular Service is your sole right and remedy with respect to any dispute with us. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this TOU or our enforcement or application of this TOU; (2) the content available through this site or any change in such content; (3) your ability to access and/or use this site; or (4) the amount or type of any fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY
Copyright Notice. ©PrimeSender.com, 2012. All rights reserved.
Intellectual Property. The Service is controlled and operated by us. The Service, and all materials accessible through the Service, including websites, website content and information, graphics, code, images, text, illustrations, logos, audio and video files (collectively "Intellectual Property"), are protected by copyrights, trademarks, service marks, or other proprietary rights owned or licensed by us. The compilation (meaning the collection, arrangement, and assembly) of all materials on the Service is our exclusive property and is protected by U.S. and foreign laws and international copyright treaties. Material from the Service may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Use or modification of our Intellectual Property in any form, including but not limited to use on any other website or networked computer environment, without our express written authorization is a violation of our copyrights and other proprietary rights and is strictly prohibited.
DMCA Notices. Notification and Procedure for Making Claims of Copyright Infringement. You may notify us if your work has been copied in a way that you believe constitutes copyright infringement. In compliance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2), we have designated a Copyright Agent to receive any such notification. Our Copyright Agent may be contacted at:Designated Agent for DMCA Notices
c/o Walter Messick, Esq.
Galvan Messick, LLP
1900 Corporate Blvd., Suite 101 West
Boca Raton, Florida 33431
If you wish to notify our Copyright Agent of a claim of copyright infringement, please provide written notice. Your notice must contain the following information:
- A physical or electronic signature of the person authorized to act on behalf the copyright owner;
- Identification or description of the copyrighted work you claim has been infringed;
- Identification or description of the work you believe is infringing on your copyrighted work and enough information to assist us in locating the allegedly infringing work;
- Your address, telephone number, and email address;
- A statement that you have a good faith belief that the use by the person you believe has infringed on your copyright is not authorized by the copyright owner, its agent, or the law; and
- Your statement, made under penalty of perjury, that the information contained in your notification is accurate, and that you are the copyright owner or are authorized to act on the owner's behalf.
Trademarks. "PrimeSender" and other marks, logos, and service names are our trademarks and/or trade dress or the trademarks, trade names and/or trade dress of our affiliates. None of our trademarks or our affiliates' trademarks may be used in connection with any product or service that is not ours or our affiliates', in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us, or our affiliates. All other trademarks viewable from a search performed using the Service are the trademarks and/or registered trademarks of their respective owners.
Licenses Granted. Subject to your strict compliance with this Agreement, and in consideration of your promises reflected in this TOU, we grant to you a limited license to make use of the Service. This license expressly excludes, without limitation, any resale, or modification of the Service or any portion thereof and making any derivative works based upon or distributing or copying the Service, except as expressly permitted hereunder. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of us and our affiliates without our express written consent. You may not use any Meta tags or any other "hidden text" utilizing our name or trademarks or those of our affiliates without our express written consent or that of our affiliates. Any unauthorized use terminates the permission or license granted by us in this paragraph. In addition, the license is subject to the following further limitations:
- Any copies of documents contained on this website or portions thereof that you make must include the above copyright notice;
- Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU, all rights are reserved by us; and
- You may not link to this website, without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion.
ACCEPTABLE USE POLICY
ILLEGAL, UNAUTHORIZED, OR FRAUDULENT CONTENT OR ACTIVITIES
This Section defines the Acceptable Use Policy ("Policy") relating to the Service. You are responsible for continual compliance with this Policy. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations. We take no responsibility for third party content, nor do we have any obligation to monitor such third party content. Nonetheless, we reserve the right to monitor content at any time for any reason. Further, we reserve the right to remove content or prohibit any use of the Service it believes may be (or alleged to be) in violation of the Agreement, or containing objectionable or personally identifiable information. We will not be responsible or liable for the exercise or non-exercise of your rights under this TOU.
You shall not use the Service 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. You shall be subject to the indemnification provisions in this Agreement if your use of the Service violates or infringes upon such rights.
For example, you may not use the Service to submit, create, transmit, distribute, provide access to or store any files, information or material that:
- Violates a trademark, copyright, trade secret or other intellectual property rights of others
- Violates the privacy, publicity or other personal rights of others
- Impairs the privacy of communications
- Contains obscene, offensive, illegal or inappropriate content
- Constitutes pornography
- May be considered threatening, abusive or hateful or promoting such views or behaviors
- Violates export control laws or regulations
- Encourages conduct that would constitute a criminal offense or give rise to civil liability
- Causes technical disturbances to the Service, including, but not limited to, adware, spyware, introduction of viruses, worms or other destructive elements
- Assists or permits any persons in engaging in any of the activities described above
- Involves deceptive on-line marketing
If you become aware of any such activities, you are obligated to immediately notify us.
We reserve the right to suspend or terminate access to the Service upon notice of a violation of this Policy. Indirect or attempted violations of this Policy, and actual or attempted violations by a third party on behalf of you, shall be considered violations of this Policy by you.
Terminations for Violations of the TOU. We have the right, but not the obligation, to monitor any activity or content associated with the Service. We may investigate any reported violation of its policies and take any action we deem appropriate, including terminating your access to the Service without notice. Any of the following, without limitation, would be a violation of the TOU and our policies and guidelines, and upon our determination, in our sole discretion, that you have engaged in any of the following, we shall terminate your access to the Service without notice, and to the extent applicable, remove, or disable access to, any material that is in violation of the following or claimed to be infringing or to be the subject of infringing activity. Accordingly, you expressly represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the Service any materials which (i) restrict or inhibit any other user from using and enjoying the Service, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, or (vi) constitute or contain false or misleading indications of origin or statements of fact.
Required Reporting. We may report any distribution or other activity we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. To cooperate with governmental requests, to protect our systems and users, to ensure the integrity and operation of our business and systems, or in response to subpoenas, court orders, or legal requirements, we may access and disclose any information we consider necessary or appropriate, including your contact details, IP addressing and traffic information, posted content, and web usage paths and may retain such information for appropriate law enforcement officials or other third party enforcement personnel to the extent permitted by applicable federal, state and local laws. By using the Service you expressly consent to the foregoing use and disclosure.
You hereby agree to indemnify, defend and hold harmless PrimeSender, its parent company, affiliates, owners, managers, directors, agents and assigns, and its business partners, third party suppliers and providers, licensors, officers, employees, distributors against any claims, costs, damages of any kind, judgments, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorney's fees) in connection with, arising from or in any way relate to any claim or action that arises in any way from (a) an alleged violation of the Agreement or TOU or (b) your use of the Service or any other person using the Service through you or using your computer, account or in connection with your transmission of any content on or though the Services. This Section shall survive termination of this TOU.
YOU ARE USING THE SERVICE AT YOUR OWN SOLE RISK AND WE ARE UNDER NO OBLIGATION TO PROVIDE YOU WITH ANY SUPPORT, ERROR CORRECTIONS, UPDATES, UPGRADES AND/OR ENHANCEMENTS OF THE SERVICE.
YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE USER OF THIS WEBSITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS WEBSITE, THE SERVICE AND THE INTERNET GENERALLY.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICE OR INFORMATION OR CONTENT PROVIDED THROUGH THE SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS OR MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR FAULT-FREE; (II) THAT THE SERVICES WILL BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THAT THE SERVICE ARE NONINFRINGING. WE AND OUR AFFILIATES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE US AND OUR AFFILIATES FROM, ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS TOU OR THE SERVICE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION), INCLUDING WITHOUT LIMITATION ANY SUCH ACTION ARISING OUT OF (I) USE OF THE SERVICES BY ANY PERSON, INCLUDING BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY INFORMATION, (II) ANY USE OR INABILITY TO USE THE SERVICE FOR WHATEVER REASON, INCLUDING BUT NOT LIMITED TO COMMUNICATIONS FAILURE OR ANY OTHER FAILURE WITH TRANSMISSION OR DELIVERY OF ANY INFORMATION ACCESSED THROUGH THE SERVICE, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED, OBTAINED, OR PARTICIPATED IN, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICES, IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT SOME REMEDY IS REQUIRED BY APPLICABLE LAW WITH RESPECT YOUR USE OF THE SERVICES, YOUR EXCLUSIVE REMEDY REGARDING THE SERVICES SHALL BE THE REPLACEMENT OF ANY SUCH SERVICE OR COMPONENT OF THE SERVICES FOUND TO BE DEFECTIVE. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY OR OUR AFFILIATES' CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF DIRECT DAMAGES RELATING TO THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID FOR USE OF THE SERVICES DURING THE ONE-YEAR PERIOD PRECEDING THE CLAIM.
By using the Service, You:
- agree that the substantive laws of the state of Florida, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this TOU;
- agree that you may not assign any or all of your rights and obligations under this TOU without the prior written consent by us, which may be withheld in our sole discretion;
- agree that all provisions of this TOU relating to ownership of intellectual property and proprietary rights, warranty disclaimers, limitation of liability, and indemnification shall survive the termination of your use or access to the website, for whatever reason;
- agree that nothing in this TOU shall be deemed to convey any third party rights or benefits;
- agree that except as otherwise required by law (in which case Florida statutes of limitation shall apply), the arbitration of any cause of action or claim you may have with respect to this website must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred;
- agree that if any portion of this TOU is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted and that the other provisions of this TOU remain in full force and effect;
- agree that no waiver of any breach of any agreement or provision of this TOU, nor any failure to assert any right or privilege contained in this TOU, shall be deemed a waiver of any preceding or succeeding breach of any agreement or provision;
- agree that the section titles in the TOU are for convenience only and have no legal or contractual effect; and
- agree that this TOU (including all policies, notices and other terms incorporated into this TOU by reference) constitutes the entire agreement between you and us with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral.
DISPUTES AND ARBITRATION PROVISION. This TOU shall be construed, enforced and determined according to the laws of the State of Florida without regard for choice of law provisions. All parties and/or users agreeing to this TOU agree that any and all disputes, causes of actions or claims arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be fully and finally settled in binding arbitration proceedings under the Rules of Arbitration of the American Arbitration Association in force at the time this Agreement is entered, by one arbitrator appointed in accordance with said Rules, with the specification that any such arbitral award shall be enforceable by any court having jurisdiction thereof. All parties seeking relief are to be bound by this arbitration provision as the sole method to determine any disputes arising from, in connection with, or related to this Agreement, including any actions to enforce or interpret this Agreement. Exceptions: You and we agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy or unauthorized use; and (3) any claim for injunctive relief. The arbitration proceeding shall be construed in accordance with the applicable laws of the American Arbitration Association. All Arbitration proceedings shall be held in Ft. Lauderdale, Florida.
All parties and/or users agreeing to this TOU agree that any and all disputes arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be limited as to discoverable information which is requested pursuant to a subpoena, arbitration, discovery, or any other legal proceeding, by the following:
- All relevant and discoverable information or data (in any form) shall be strictly limited to the dates of use by the user of the products and services offered hereunder who is requesting any such information. No discovery, including eDiscovery, shall be provided for timeframes outside the timeframe of use of the requesting party, and shall be limited to information or data that is reasonably accessible to company. All parties and users agree that these limitations are reasonable.
- All relevant and discoverable information or data (in any form) requested for such applicable dates shall be provided in the format in which it is stored or archived, and shall not be required to be provided in any other format, and no reports of any kind not used regularly in the course of business shall be requested or created/produced.
- We may request that parties and/or users cooperate in good faith regarding formulation of appropriate search terms and protocols in advance of any information or data search, including pre-search formulating of search terms, including semantic synonyms, search protocols, and post-search error sampling. Any production shall then be provided referencing such agreed protocols in lieu of individual discovery request responses.
Last Updated: October 18, 2012