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MailingSmart.com is a Web-based service that enables organizations to upload, store and manage customer and member lists, create and send email campaigns to those lists, and track and archive the results of those campaigns. MailingSmart.com and its related services are provided to you, the Customer, by us, MailingSmart.com, a California Corporation, the company that owns and operates the MailingSmart.com Service. For the purposes of this Agreement, we will refer to ourselves as "MailingSmart.com" and to you as the "Customer." Any use of the pronoun "you" in this Agreement refers to you, and any uses of the pronouns "we" or "us" refer to, well, us.
By opening a MailingSmart.com account, and using the MailingSmart.com service, you agree to abide by the terms set forth in this Agreement. You covenant that (a) you are at least eighteen (18) years of age, (b) you and your company are able to sign legally binding contracts, and (c) you are representing yourself and your company honestly to your email recipients and to us. You also agree to maintain current information about yourself and your company, and to update that information as it changes.
You, us and ownership
Your use of the MailingSmart.com Service confers no title or ownership. We are granting you temporary, non-exclusive access to MailingSmart.com services – along with certain entitlements and privileges – that will endure as long as you (a) continue to provide payment for the MailingSmart.com Service in a timely manner, and (b) continue to abide by the terms of this Agreement.
You agree not to copy, modify, re-package, reverse-engineer, disassemble, modify or otherwise use MailingSmart.com or its components in ways not explicitly allowed by this Agreement, without prior written consent from us. You also agree not to remove any proprietary notices or labels from the MailingSmart.com service.
Following the rules of permission marketing
MailingSmart.com is a permission marketing and communication service, designed to facilitate email communication and interaction between your organization and people who are interested in receiving email correspondence from you. Your use of the MailingSmart.com service carries a necessarily high standard of ethics and strict set of rules in order for both you and MailingSmart.com to be compliant with the local, state, federal and international laws - as well as all pertinent guidelines and industry best practices - pertaining to use of email as a marketing and communication tool.
With that in mind, you agree to send emails through the MailingSmart.com system only to those recipients who have a clear relationship with you and/or your organization or who have expressly indicated their desire to receive emails from you.
Specifically, to receive emails from you, a recipient must meet one of the following criteria:
1. He or she has opted in to receive your emails, using a form that clearly indicates that by submitting his or her email address he or she will receive emails from you;
2. He or she has a clear relationship with you, as (a) a member who pays dues to belong to your organization, (b) a subscriber who pays a subscription fee to gain access to your organization's services, or (c) a customer who has purchased a good or service from you within the past eighteen (18) months, in the course of which you have obtained that customer's email address.
If any recipient, regardless of his or her prior opt-in status or relationship to you, has indicated a desire not to receive emails from you - either during or prior to your use of MailingSmart.com - you may not use the MailingSmart.com service to email that recipient.
Evidence of permission
By using the MailingSmart.com service to send emails to a recipient, you are representing to MailingSmart.com that you have obtained permission to email that recipient. You must be able to provide evidence as to the origin of any email address with respect to how it was acquired and how permission was obtained. You agree to fulfill such requests for evidence by MailingSmart.com to the best of your ability and in a timely manner, and you understand that any addresses for which you are unable to provide adequate information in a timely manner will be disallowed, along with the rest of the list(s) in which that address resides, should we deem it necessary and appropriate to disallow the entire list.
No rented, purchased or harvested addresses allowed
You may not use MailingSmart.com in conjunction with email lists or addresses that have been purchased, rented or otherwise obtained from a third party, or which have been collected using a script or other harvesting method, or which have been obtained without the email address owner's knowledge. Sending emails to any address or list obtained using one or more of these methods will result in the termination of your MailingSmart.com account, immediately and without notice. We may also restrict access to your account, immediately and without notice, should we have reason to suspect that email addresses being added or imported into your MailingSmart.com account fail to meet the permission criteria set forth in this Agreement.
Should any mailing sent through your MailingSmart.com account receive an unreasonable number of complaints from Internet Service Providers or email watchdog groups (with MailingSmart.com having the right to determine what qualifies as unreasonable), we reserve the right to suspend or terminate your account immediately. Furthermore, you will be responsible for paying any fines incurred by MailingSmart.com as a direct result of one of your mailings, in cases where clear and direct evidence is presented to MailingSmart.com by the fining organization.
Clearly identifying the origin of your email, and its content
You also agree to ensure that email messages sent through your MailingSmart.com account are truthful and accurately identify the source of the message. In all emails, you agree to use subject lines that are in no way false or misleading as to the identity of the sending organization or the nature of the content contained in the email. You also agree to include your organization's physical address in all campaigns, as required by the U.S. Can-Spam legislation.
Using our opt out process
Allowing recipients of your emails to choose to stop receiving those emails is required by law. In order to ensure strict compliance, we require that you use the opt-out link and process provided with your email account and templates. You will in no way attempt to circumvent MailingSmart.com's opt out process. Furthermore, you understand that some recipients may choose to ask you to opt them out instead of using the opt-out link provided. In such cases, you agree to unsubscribe any such recipient manually, by changing the member's mailing status to "opt out" using the tools provided inside your MailingSmart.com account, and to make sure any such subscriber has been opted out prior to your next mailing being sent, and within ten (10) business days from the opt-out request, in lieu of any mailings being sent, as required by law.
Responsibility for account use and content
You are responsible for everything that happens in your account, including the email addresses that are added, imported and stored, as well as the content published, distributed or linked to/from your email campaigns. You agree to take full responsibility for any and all content distributed through your MailingSmart.com account, and to abide by all pertinent copyright laws. Should we find reason to believe you have violated any laws in the course of your use of the MailingSmart.com service, or plan to violate any law using the MailingSmart.com service, we may suspend or cancel your account immediately and without warning.
Protecting your data and your privacy
We agree to hold your account information, lists and data in strict confidence. We do not now, nor will we ever, rent, sell or in any way share your email addresses with any third party. The only time MailingSmart.com will ever share ANY information related to your MailingSmart.com account with an outside organization is if (a) the outside organization is processing your payment for the MailingSmart.com service and requires certain information necessary for the transaction, (b) the outside organization is the federal government or other agency empowered to require us to divulge your personal or account information, (c) MailingSmart.com is highlighting examples of your templates, campaigns or case studies and have obtained your permission prior to the divulging of such information, or (d) MailingSmart.com is reporting on our overall customer base and activity, in which case we will only divulge general, aggregate (non-personally identifiable) information.
In creating your MailingSmart.com account, you will create a username and a password that controls access to your account and all of the data stored within that account. MailingSmart.com stores an encrypted version of your password for added security, but you understand and acknowledge that you are ultimately responsible for maintaining control of that username and password and ensuring its proper use by authorized personnel only.
Things you may not do
The following list outlines many things, in addition to those already mentioned in this Agreement, which you may not do while using the MailingSmart.com service. Doing any one of these things may result in the suspension or termination of your MailingSmart.com account, immediately and without warning.
By using the MailingSmart.com Service, you explicitly agree not to:
use the MailingSmart.com service to break any local, state, Federal or international laws or regulations, including but not limited to those related to spamming, e-commerce, obscenity, defamation or privacy;
use the MailingSmart.com service to encourage or facilitate any illegal activities;
use the MailingSmart.com service to harass, threaten or embarrass any person or organization;
use the MailingSmart.com service to promote MLM (multi-level marketing) or Ponzi schemes;
use the MailingSmart.com service to distribute illegal, pornographic or potentially harmful or offensive information, photos, software or materials, or include links to Web pages containing any such items (We reserve the right to use our own judgment in determining what is offensive); or
use the MailingSmart.com service in conjunction with email addresses or lists that have been obtained in any way other than those outlined as permissible in this Agreement.
Your data, and our storage thereof
Your MailingSmart.com account includes certain data storage – for lists, email campaigns and content, and response tracking information. We may choose to set limits on how much information may be stored, and may change those limits at any time. Should we impose any such limits, we will provide you with reasonable advance notice of such limits, and, when possible, offer you the option to either obtain more storage at an additional cost or maintain a lower level of storage without incurring additional costs. MailingSmart.com is not responsible for the loss of any data in the event that you fail to request either more storage space or a transfer of existing data to another location and data is lost due to a change in limits or by your exceeding the existing limits.
Payment for services
Like most commercial services, MailingSmart.com asks that you, the Customer, pay us, the Company, for your use of the MailingSmart.com service in a timely manner. Unless otherwise agreed upon in writing, setup and/or licensing fees are due when your account is opened and prior to any emails (other than 'test' emails) being sent, and monthly activity and design fees are invoiced monthly and due no more than 15 days from the invoice date. By providing credit card and billing information into the MailingSmart.com system, you are authorizing us to charge that card for services rendered and according to the pricing specified in your MailingSmart.com plan or a separate addendum to this Agreement, should such an addendum exist. All credit card transactions are handled through a secure HTTPS connection with a trusted third-party credit card processor. Lastly, like most commercial services, MailingSmart.com reserves the right to suspend your account in the event you fail to pay the appropriate account fees on time, until such time as proper payment is received.
Right to inspect
For the purposes of providing you service and support, and to ensure that the terms of this Agreement are being followed, we reserve the right to inspect and monitor your account and data at any time, without notice, and to limit access to your account at any time should we have reason to believe that you have already, or may at some point in the future, violate any terms set forth in this Agreement.
Termination
Unless otherwise agreed upon in writing, your use of MailingSmart.com requires no long-term contracts and therefore may be terminated at the end of any monthly billing cycle. Any request to terminate will take effect at the end of that month, and you will be responsible for payment for any services rendered up through the termination date. If you have paid in advance for a certain period of time for the MailingSmart.com service or any portion thereof and terminates prior to the completion of that period, that payment is non-refundable.
We may terminate this Agreement if: a) payment for services rendered becomes at least 60 days overdue, or b) we determine that you are in breach of any of the terms set forth in this Agreement.
Should we be forced to terminate your account, we will work with you to help retrieve email addresses and other appropriate data from your account within a reasonable period of time and prior to any final termination or deletion of your account data. We make no guarantees as to the availability of your data for more than 30 days following the date of termination by either party.
You may request that we keep your account - and account data - intact, if there is a chance you will someday use it again. In such event, you understand and acknowledge that account reactivation may require a reactivation fee or other charges.
Modifications to this Agreement
We may, from time to time, edit, append or otherwise modify the terms of this Agreement. Any changes will take effect as soon as they are posted on the MailingSmart.com website under “Terms Of Use”. Your continued use of MailingSmart.com after such changes have been posted indicates your acceptance of those changes and agreement to abide by them. If you disagree with any changes made to this Agreement, you may terminate your MailingSmart.com account as set forth in the 'termination' section above.
Warranties and disclaimers
MailingSmart.com and its related services are provided "as is," and we expressly disclaim all warranties or conditions of any kind (express, implied or statutory), including without limitation the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. We will not be liable for any lost profits or special, incidental or consequential damages arising out of or in connection with MailingSmart.com or this Agreement.
In short, we can not and do not guarantee that MailingSmart.com will work in any particular way, nor can we guarantee that it will provide you with any particular result, like making you more money, increasing your customer base, improving your tennis skills, etc. You agree not to hold us liable, financially or otherwise, should MailingSmart.com fail to perform these things that we cannot guarantee in the first place. In no event shall we be liable to you for any amount greater than the fees you have paid to us for your use of the MailingSmart.com service over the previous twelve (12) months.
To reiterate: You, the Customer, agree to indemnify and hold harmless MailingSmart.com,Inc., its officers, employees and business partners, from any claims arising from your use of MailingSmart.com or its related services.
Headers
The headers in this Agreement are provided as visual aids only and are not to be considered legally binding in any way.
Miscellaneous
This Agreement says everything there is to be said about the relationship between MailingSmart.com and you and your use of the MailingSmart.com website and service and, therefore, it supersedes any other agreement about those topics. You cannot transfer any of your rights or responsibilities under this Agreement. We can transfer any of our rights and responsibilities under this Agreement.
This Agreement will be interpreted in accordance with the laws of the State of California. Should MailingSmart.com and you ever have to go to court over this Agreement or anything related to your use of the MailingSmart.com service, you agree to submit to the jurisdiction of the Federal and state courts in San Luis Obispo County, California. Before going to court, all parties agree to attempt to sort out any problem through arbitration in San Luis Obispo, California, in accordance with the regulations of the American Arbitration Association. If any provision of this Agreement is held to be invalid, that provision will be enforced to the extent possible and all other provisions of this agreement will be given full effect. If we fail to act to enforce any of the provisions of this agreement, that inaction will not be a waiver of our right to act and will not affect our ability to act later.
We may send you any notice that is required by this Agreement or otherwise via email or regular mail or by posting the notice on the MailingSmart.com website. Any notice you send us should be sent to Lauren@MailingSmart.com or mailed to Lauren Lekai, MailingSmart.com, 612 12th Street, Paso Robles, California 93446.
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