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CONSTANT CONTACT®
Constant Contact provides small and medium sized businesses and organizations a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns. This service may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By clicking the 'I accept these terms and conditions' button on the sign-up page or by logging in to Constant Contact, you accept these terms and conditions. 1. Acknowledgements. Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:
2. Services and Support 2.1 The Services are provided subject to this Agreement, as it may be amended by Constant Contact, and any guidelines, rules or operating policies that Constant Contact may establish and post from time to time (the "Agreement"), including without limitation Constant Contact's Email Privacy Policy, as linked from all email generated from Constant Contact or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on the Constantcontact.com website, or otherwise providing notice to you, Constant Contact may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services in its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service or at Constant Contact's website. 2.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services. 2.3 You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. You are responsible for maintaining the security of your account, passwords, and files. 3. Free Trial, Fees and Payment 3.1 Once you have completed your free trial period or have exceeded the free subscriber limit, you will be subject to monthly subscription fees. You will be required to submit payment for Services (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for Paid Services. Access to the Services will be disabled until payment is received. 3.2 Fees will be billed monthly or your pre-paid account will be debited monthly for Services. The Fees are based on the highest number of subscribers in your account at any time during the previous month. If selected by you, you will also be billed for premium image hosting services. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by Constant Contact. The Fee Schedule, including subscriber levels and prices, is subject to change at any time in Constant Contact's discretion. Constant contact will attempt to notify you via email prior to the effectiveness of any change to the Fee Schedule. 3.3 Payment for Services will be made by a valid credit card accepted by Constant Contact. Fees are payable in US dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize Constant Contact to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period. If Constant Contact is for any reason unable to effect automatic payment via your credit card, Constant Contact will attempt to notify you via email and your Constant Contact account will be disabled until payment is received. Amounts paid for the Services are not refundable. 3.4 You acknowledge and agree that you are responsible for paying Fees for all email messages sent through Constant Contact, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by any third party. 3.5 All Fees are exclusive of all excise, sales, use, transfer and other taxes and duties imposed with respect to the Services by any federal, state, municipal or other governmental authority, all of which taxes must be paid by you except for taxes based on Constant Contact's net income. You are responsible for obtaining and providing to Constant Contact any certificate of exemption or similar document required to exempt any transaction from sales, use or similar tax liability. 4. Email, Image Hosting & Permission Practices 4.1 Every email message sent in connection with the Services must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Email Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Constant Contact. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. 4.2 You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used; please contact Constant Contact if you have questions). 4.3 If you have used the Constant Contact feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails to that recipient. 4.4 You cannot mail to distribution lists, newsgroups, or spam email addresses. You cannot copy a Constant Contact template or any other features or functionality from the Services and use them for any purpose other than sending emails from the Service. 4.5 You are responsible for monitoring, correcting, processing unsubscribe requests within 10 days, and updating the email addresses to which messages are sent through your Constant Contact account. 4.6 Emails that you send through the Service may generate abuse complaints from recipients. As a matter of privacy, Constant Contact cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry norms. Constant Contact, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. 4.7 Images hosted by Constant Contact may only be used in connection with the Service and for no other purpose whatsoever. 4.8 You are responsible for complying at all times with the Constant Contact Prohibited Content and Commerce Policy. 4.9 Constant Contact, at its own discretion, may immediately disable your access without refund to the Services if Constant Contact believes in its sole discretion that you have violated any of the email and permission practices listed above, or the Constant Contact Prohibited Content and Commerce Policy. 5. Restrictions and Responsibilities 5.1 Constant Contact will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties unless required by law. 5.2 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. Unless you are an authorized Constant Contact Reseller, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Services or the Software, or any content, including but not limited to newsletters, distributed to you by Constant Contact in connection with the Services. Violation of these restrictions may result in the termination of this Agreement. 5.3 The Services shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Services or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. 5.4 You acknowledge and agree that the Services and the Constant Contact company names and logos and all related product and service names, design marks and slogans, are the property of Constant Contact or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Constant Contact. Your use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale of any rights in the Services, the Software or the Marks. 5.5 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). You agree you will not access or otherwise use third-party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless Constant Contact and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. In addition, you acknowledge and agree that Constant Contact has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. Although Constant Contact has no obligation to monitor the content provided by you or your use of the Services, Constant Contact may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing. 5.6 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in this jurisdiction or your local area is prohibited. Furthermore, the Services must not be used for purposes outlined in Constant Contact's Prohibited Content and Commerce Statement, the terms of which are incorporated into this Agreement by reference. 5.7 For every email message sent in connection with the Services, you acknowledge and agree that the Services may automatically add an identifying footer stating "Powered by Constant Contact" or a similar message. You agree to cooperate with and provide reasonable assistance to Constant Contact in promoting and advertising the Services. 5.8 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Constant Contact. Constant Contact may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you. If you licensed the Services as a result of solicitation by a Marketing Partner of Constant Contact, Constant Contact may share your information with the Marketing Partner and the Marketing Partner may share information with Constant Contact. Constant Contact will not provide information to companies you have not authorized for that purpose unless required by law or if you are terminated from Constant Contact due to unsolicited commercial email being sent from your Constant Contact account. 5.9 If you receive special discounts through a Marketing Partner, those discounts may not be available if you cease to continue to be a customer of the Marketing Partner, in which case Constant Contact's standard rates will apply. The Marketing Partner may notify Constant Contact of any change in your status. 6. Termination 6.1 You may terminate this Agreement at any time by calling Constant Contact Customer Support. There are no refunds for any fees paid. 6.2 Constant Contact may terminate this Agreement or the Services, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. Constant Contact shall have no liability to you or any third party because of such termination or action. 6.3 Constant Contact will delete any of your archived data within 30 days after the date of termination. After termination, you are required to process all unsubscribe requests within 30 days of your last email campaign. Constant Contact will provide upon request the list of unsubscribe requests from your last campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability. 6.4 If your account is classified as inactive for over 120 consecutive days by Constant Contact in its sole discretion, then Constant Contact shall have the right to permanently delete all subscriber and other data in your account, with or without notice and without liability to you. You shall not have any right to refund of any amounts paid to Constant Contact under this Agreement as a result of such deletion or any termination permitted under this Agreement. 7. Warranty Disclaimer; Remedies USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. CONSTANT CONTACT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND CONSTANT CONTACT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for Constant Contact to use commercially reasonable efforts to adjust or repair the Services. 8. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CONSTANT CONTACT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "CONSTANT CONTACT") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CONSTANT CONTACT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, CONSTANT CONTACT IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF CONSTANT CONTACT TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. 9. Export of Services or Technical Data You may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country. 10. Miscellaneous 10.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 10.2 Constant Contact and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy. 10.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Constant Contact in any respect whatsoever. 10.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees. 10.5 The Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Boston, Massachusetts. 10.6 Constant Contact is a trade name of Roving Software Incorporated, a Delaware corporation. |
