Terms and Conditions
This Agreement ("Agreement") contains the
complete terms and conditions that apply to your use
of Topica’s Online Marketing and Sales Solution or any
service components thereof, including without limitation,
the Topica Email Publisher (the "Services").
As used in this Agreement, "Topica", "we",
"us", or "our" refers to Topica
Inc. and "you" or "your" refers
to the person who creates one or more email mailing
lists ("Lists") and corresponding accounts
using the Services, and performs the administrative
functions of the Lists. The Services are offered to
you conditioned on your acceptance without modification
of this Agreement. Your use of the Services constitutes
your acceptance to this Agreement.
Customer Acquisition Services
There are additional terms of service specific to the
Customer Acquisition components of the Services (i.e.,
co-registration) that are part of this Agreement. Please
read the Customer Acquisition
terms of service to see these additional terms.
Modifications of Terms and Conditions
We may modify any of the terms and conditions contained
in this Agreement, at any time and in our sole discretion,
by posting a change notice or a new agreement on our
Web site located at www.topica.com
or any such successor Web site. You are responsible for
regularly reviewing these terms and conditions. Continued
use of the Services after any modification shall constitute
your consent to such modification. We do not and will
not assume any obligation to notify you of any modification
to the Agreement. If any modification is unacceptable
to you, your only recourse is to terminate this Agreement.
Use of Services
You may use the Services for the specific purposes of
assisting you in the creation and administration of
one or more Lists for which subscribers have voluntarily
registered. If you use the Services to create a List,
you may remove any subscribers from such List at your
discretion. You also agree to abide by the request of
any subscriber to be taken off such List, with such
action to be taken in a reasonably timely manner. We
reserve the right to restrict or terminate your use
of the Services if we receive complaints about any of
your Lists in accordance with our Permission
Email Policy.
Limitations On Use
You agree that you have the full authority and right
to enter into this Agreement and that you are at least
18 years of age. You also agree that you will not use
the Services to transmit, disseminate or upload:
• |
Unlawful, harassing, libelous, tortuous,
abusive, threatening, or obscene communications
of any kind. |
• |
Materials that infringe or violate any third
party's copyright, trademark, trade secret, privacy
or other proprietary or property right, or that
could constitute a criminal offense, give rise
to civil liability or otherwise violate any applicable
law or regulation. |
• |
Objectionable materials, including without
limitation, content that contains blatant bigotry,
racism, or hatred, or that promotes illegal activities
or physical harm against anyone. |
• |
Spam, chain letters, junk mail or any other
type of unsolicited mass e-mail to people or entities
who have not agreed to be part of such mailings.
|
• |
Viruses or other harmful, disruptive or destructive
files. |
• |
Content containing nudity or pornographic
material of any kind to people under age 18, or
to anyone on lists that are not limited to people
age 18 or older. |
You further agree: (a) that you will not disrupt or
interfere with another user's use or enjoyment of the
Services; (b) that you will not use or attempt to use
another person's or entity's account, service or system
without authorization from the owner, nor will you disrupt
or interfere with the security of, or otherwise abuse,
the Services, system resources or accounts, or any servers
or networks connected to the Services; (c) that you
will not attempt to obtain unauthorized access to Services,
or to private lists on the Services; (d) that you are
solely responsible for your actions in relation to Services,
and for any communications transmitted under your account;
(e) that you will not forge header or address information
or otherwise impersonate another or create a false identity;
(f) that you will not systematically extract, collect
or harvest, through electronic means or otherwise, any
data or data fields, including without limitation, lists,
list owner identities, or email addresses, from our
Web site; (g) that you will not disrupt the normal operations
of the Services or cause any substantial change in the
usual content or frequency of emails sent using the
Services; (j) that you will comply with all laws relating
to the transmission of technical data or software exported
from the United States; and, (k) that you will comply
with all applicable local, state, national and international
laws and regulations, including without limitation those
related to privacy, data collection and email creation
and delivery. You agree that we may in our sole discretion
remove any material that appears to violate any of the
foregoing, and may immediately limit or terminate your
account or access if it appears you have violated any
of the provisions as described herein.
Fees and Payment Terms
You hereby authorize us to charge your credit card for
the applicable fees to be incurred by you or on your
behalf in connection with your use of the Services during
the term of this Agreement. Such fees will be charged
to your credit card dependent on which specific Services
you are using and the payment terms of such service
as described on the relevant sections of the Topica
Web site. These charges will occur until this Agreement
is terminated and your account canceled, regardless
of List or account activity. It is your responsibility
to notify us if your credit card has expired and to
make necessary changes or your use of the Services may
be discontinued or interrupted. You shall be solely
responsible for all charges, fees, duties, taxes, and
assessments arising out of your use of the Services.
We reserve the right to modify the fees charged for
the Services from time to time, provided that such modifications
will not take effect earlier than thirty (30) days after
we post such modifications on our Web site. Amounts not
paid by you to us when due, may bear interest at the
lesser of (a) one and one-half percent (1.5%) per month,
and (b) the maximum rate permitted by applicable law.
Billing and Renewal
Topica charges and collects in advance for use of the Service.
Topica will automatically renew and bill your credit card or
issue an invoice to you (a) every month for monthly services, (b)
every quarter for quarterly services, (c) each year on the
subsequent anniversary of the initial sales order, or (d) as
otherwise mutually agreed upon. The renewal charge will be equal
to the then-current service order, unless Topica has given you at
least 30 days prior written notice of a fee increase, which shall
be effective upon renewal and thereafter. Fees for other services
will be charged on an as-quoted or published basis.
Topica’s fees are exclusive of all taxes, levies, or duties
imposed by taxing authorities, and you shall be responsible for
payment of all such taxes, levies, or duties, excluding only
United States (federal or state) taxes based solely on Topica's
income.
Term of the Agreement
The term of this Agreement will begin upon your first
use of the Services and will end when terminated by
either you or us as described herein. We may terminate
this Agreement at any time, with or without cause, and
with or without notice. In the event that you would
like to terminate this Agreement, you will need to send
such notice of termination to our Customer Success department.
Your termination of the Agreement will be effective
upon the last day of the month in which we received
such notification. Fees pre-paid by you for periods
after the effective date of termination will be credited
back to your applicable credit card (except to the extent
such termination is due to your breach of this Agreement)
within forty-five (45) days after such effective date.
Such credit shall be equal to the unused portion of
the pre-paid fees less the pro-rata portion of any promotional
discount provided to you as a condition of your use
of the Services. We are not required to refund directly
to you any amounts paid hereunder.
Topica Attribution
We shall have the right to include a 2-line attribution
message such as: "Delivered by Topica"
or a substantially similar message, at the bottom of
each email delivered by the Service to a List. Such
message shall include a link to a page within our website.
Topica Communication
We shall have the right to communicate with you via
email, receipt of which by you is considered by Topica
essential to our provision of service. You may unsubscribe
from such communication at any time.
Disclosure of Information
We will not disclose personally identifiable information
about you or your private communications (i.e., content
transmitted on private, non-public lists) to third parties,
without your permission, unless we believe such disclosure
is reasonably necessary to: (1) comply with the law
or legal process; (2) protect or defend our rights or
property or that of others; (3) enforce this Agreement;
(4) respond to claims that the contents of any communications
violate the rights of others; or (5) as otherwise provided
in the Agreement. From time to time, we will disclose
aggregate user demographic data to third parties. We
may access your Lists and related communications for
technical processing and to address technical problems
or service complaints. For more information on disclosures
please read our Privacy Policy.
Proprietary Rights
We will not sell, trade, rent, lend or give email addresses
that you supply us to anyone else for any purpose, nor
will we use the addresses you supply us for any purpose
other than supplying the Services to you or for verifying
the proper functioning of our systems. It is understood
that it is possible that some of the addresses you supply
us may already be on lists that we own and that we have
the right to mail to such addresses.
We do not claim ownership of the materials you provide
to us for purposes of using the Services and which were
created by you or on your behalf. By transmitting such
materials for distribution to your Lists, you grant
us a worldwide, royalty-free, and non-exclusive license
to reproduce, modify, adapt and publish such materials
solely for the purposes of providing the Services to
you.
Disclaimer of Warranties
THE SERVICES ARE PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE
THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE
FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW,
WE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR NON-INFRINGEMENT. WE DO NOT MAKE ANY WARRANTY THAT
THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE
SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR
FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR
DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY
OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE
OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL
AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH
THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND
RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE
ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO
SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitations of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE, SHALL TOPICA OR ITS PARENTS, SUBSIDIARIES,
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE
USE OR THE INABILITY TO USE THE SERVICES OR FOR THE
COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES
OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY
MEANS OF OR THROUGH THE SERVICES, OR RESULTING FROM
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS
OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED
OR NOT SENT OR RECEIVED, INCLUDING BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES,
EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE
TO DELIVER, HOLD OR STORE EMAIL TRANSMITTED THROUGH
THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SERVICES,
YOUR EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES
SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. Without limiting
any of the foregoing, we are not responsible for any
of your materials and data residing on our network hardware.
You are responsible for backing-up your materials and
data that may reside on our network hardware, whether
or not such materials and data are produced through
the use of the Services. It is your responsibility to
take the necessary steps to ensure your primary means
of business is maintained. In no event will we be liable
to you for more than the actual dollar amount that you
paid for the use of the Services during the term of
this Agreement.
Indemnification
You agree to indemnify, defend and hold harmless Topica,
its parents, subsidiaries, affiliates, officers, directors,
employees, agents, and suppliers, and their respective
affiliates, officers, directors, employees, and agents,
from any claim, action, demand, or damage, including
reasonable attorney's fees, made by any third party
arising out of or related to your use of the Services
or your violation of this Agreement, including without
limitation the infringement by you or any other user
of your account, of any intellectual property or other
right of any person or entity. We may, at our sole discretion,
assume the exclusive defense and control of any matter
subject to indemnification by you. The assumption of
such defense or control by us, however, shall not excuse
any of your indemnity obligations.
General
This Agreement shall be governed by and construed in
accordance with the laws of the State of California,
without giving effect to its conflict of laws provisions.
You agree that you will bring any claim or cause of
action arising out of your use of the Services or this
Agreement in the courts located within the county of
San Francisco, California or the Northern District of
California and you also agree to submit to the personal
and exclusive jurisdiction of those courts. You agree
that any claim or cause of action arising out of your
use of the Services or this Agreement must be filed
within one year after such claim or cause of action
arose or it shall be forever barred, notwithstanding
any statute of limitations or other law to the contrary.
If any provision contained in this Agreement is determined
unenforceable, then such provision will be severed and
replaced with a new provision that most closely reflects
the intent of the original provision, and the remaining
provisions of this Agreement will remain in full force
and effect. No waiver of any provision of this Agreement
shall be effective except pursuant to a written instrument
signed by us waiving compliance, and any such waiver
shall be effective only in the specific instance and
for the specific purpose stated in such writing. You
agree that no joint venture, partnership, employment,
or agency relationship exists between you and us as
a result of this Agreement or your use of the Services.
You shall not assign this Agreement or any right, interest
or benefit under this Agreement without our prior written
consent. This Agreement sets forth the entire agreement
between you and us, and supersedes any and all prior
communications and proposals, whether electronic, oral
or written, between you and us with respect to the Services.
A printed version of this Agreement and of any notice
given in electronic form shall be admissible in judicial
or administrative proceedings based upon or relating
to this Agreement to the same extent and subject to
the same conditions as other business documents and
records originally generated and maintained in printed
form.
Last Updated: November 20, 2004
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