PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND EMAILPEDDLER, LLC. (“EmailPeddler” OR “WE”).
BY SIGNING UP WITH EMAILPEDDLER, YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT FOR SERVICES AND YOU ARE NOT BEING GRANTED A LICENSE TO ANY SOFTWARE UNDER THIS AGREEMENT.
Our customers retain and authorize EmailPeddler to transmit messages and provide information to their Recipients on their behalf. In the course of providing those Services, Customers provide us with personal information relating to their Recipients.
EmailPeddler Products and Services
Monthly Recurring Plans
Our charges for our monthly recurring plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the “Term.” Payments are due every 30 days from the date of the month you signed up with us and made your first monthly payment (the “Pay Date”).
Monthly Plans – No Overage Charges. If you consume all of your email credits available in your subscription plan for a given period, you may purchase additional credits that can be used for the remainder of the calendar month. EmailPeddler does *not* automatically add credits to your account, and then later bill you for ‘overage’ usage in any given month. Any unused credits are not ‘rolled over’ to the following month or period.
As long as you are an “Active Customer” or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
Money Back Guarantee
Fees and Payment
In consideration for the Services to be provided by EmailPeddler, you agree to pay all fees set forth in the Service Order. You agree:
- EmailPeddler reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
- If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
- If a user causes one or more of our IP addresses to be added to a primary blacklist (SORBS or Spamhaus) as a result of directly violating our terms of service, EmailPeddler reserves the right to charge customer up to $200 per IP address that has been affected and the customer account may be temporarily suspended until listings are resolved. EmailPeddler, at it’s sole discretion, may elect to waive these charges.
- If, for some reason we are unable to process your credit card, or we do not receive your pre-paid check when due, EmailPeddler will attempt to contact you by email and your account may be suspended until your payment can be processed. In the event you fail to make timely payments when due, EmailPeddler may, at its election, discontinue, terminate or suspend the Services and delete all Customers Data from its systems, in each case, without incurring any liability to you, the Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Subscription Fees for the remainder of the term of this Agreement.
- You agree to pay for all emails you send from your EmailPeddler account, even if you accidentally sent the wrong campaign to the wrong list, or if messages are blocked by any third party (we have no control over your recipients’ email servers, ISP availability, personal spam filter settings, etc.
If you need to cancel your subscription, please contact us via email at support [at] EmailPeddler.com. You can also directly terminate your account form the ‘Settings’ tab within your EmailPeddler account. Details can be found in our Cancellation Policy, posted on www.EmailPeddler.com.
Term, Termination and Removal
Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. You can cancel your account by contacting EmailPeddler Sales via email at support [at] EmailPeddler.com at any time in accordance with our “Cancellation Policy” which can be found on our website.
We may suspend our Services to you at any time with or without cause. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage. Additionally, if you do not log in to your account for 12 or more months, we may deem your account “inactive” and permanently delete your account and all data associated with it.
If you terminate your account, as a courtesy EmailPeddler may retain your data for up to 30 days, after which all data will be permanently removed.
Data Retention. EmailPeddler retains campaign historical information for active customers for a period of at least 2 months.
You agree to the following:
- You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.
- You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party’s rights, including, but not limited to, copyrights and privacy and publicity rights.
- You will not share your password. You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
- You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
- You agree to abide by EmailPeddler’s Anti-SPAM policies posted on our website and incorporated herein.
- You agree to permit EmailPeddler to add your logo to our ‘Customers’ section of our website. EmailPeddler will not issue any announcements or press releases or otherwise represent that you are a customer without your prior written consent. You may contact email@example.com if you would like your logo removed.
- Proprietary Rights Owned by Us. You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
- Proprietary Rights Owned by You. You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
Representations, Warranties and Covenants
Customer represents, warrants and covenants to EmailPeddler that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
Disclaimer of Warranties
THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMAILPEDDLER AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES. EMAILPEDDLER AND THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
Limitation of Liability
IN NO EVENT WILL EMAILPEDDLER OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF EMAILPEDDLER OR ITS REPRESENTATIVES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL EMAILPEDDLER AND THE REPRESENTATIVES’ TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO EMAILPEDDLER FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or EmailPeddler non-provision, of the Services (or the Professional Services), Customer’s sole and exclusive remedy shall be for EmailPeddler to use commercially reasonable efforts to repair or provide the Services.
Customer agrees to indemnify, defend and hold harmless EmailPeddler, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) arising from Customer’s negligence or intentional misconduct, Customer’s violation of any applicable law, including the federal CAN SPAM Act, 15 U.S.C. 7701-7713, this Agreement or the Policies, Customer’s breach of any of its representations, warranties or covenants set forth herein, or Customer’s infringement of any intellectual property rights or other rights of any person or entity.
This Agreement will be governed by the laws of the State of Ohio as applied to agreements entered into and performed entirely within the State of Ohio, without regard to any choice of law provisions thereof. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
This Agreement does not create a partnership, joint venture or agency relationship between EmailPeddler and Customer. Customer does not have any right, power, or authority to act as a legal representative of EmailPeddler.
Notification of Security Breach
In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a “List”), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of EmailPeddler. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between EmailPeddler and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the EmailPeddler and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.
EmailPeddler’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered to us at our stated office location, or such replacement addresses as we may later provide on the Website.
Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by EmailPeddler and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third-party beneficiaries.
Force Majeure. We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, epidemics, war, terrorist acts, fires, explosions, strikes, power blackouts, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow-downs over the internet or any third party internet service providers.