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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 Application (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., Cost-per-Lead
advertising or 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 website located at www.topica.com or
any such successor website. 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 website;
(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.
Data Retention Policy
To keep the Topica databases working at optimal performance, we have
the following policies regarding maintaining data from all active
customers' accounts:
- Detailed bounce activity data will be available for 180 days after a campaign is sent. Bounce statistics will remain available for your sent campaigns using the Reports feature, but audiences will not be able to be generated from this bounce activity after 180 days.
- Detailed subscriber activity data (clicks/opens) will be available for 180 days after a campaign is sent. While a campaign's overall statistics will remain available through the Reports feature, customers won't able to build audiences on this data for campaigns older than 180 days (e.g. subscribers who opened a campaign).
- Unsubscribed list member information will be available for 180 days only.
- Deleted lists will not be recoverable after 180 days.
For deactivated/closed accounts, all account data will be completely
purged after 180 days and will be unrecoverable.
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 website. 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 website. 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 bill your credit card for the first year of service (or otherwise
agreed-upon period) prior to your account set-up. Topica will
automatically renew and bill your credit card (or, if agreed to in
advance, we may issue an invoice) each year on the anniversary of the
contract. Billing will take place according to the schedule
determined in your written contract or online purchase process. If you
contract for some other period, Topica will automatically renew and
bill your credit card or issue an invoice for (a) every month for
monthly services, (b) every quarter for quarterly services, or (c) as
otherwise agreed upon in the contract. 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. All database overage fees
are billed on a monthly basis, regardless of your billing frequency
for Service fees. 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 the effective date of your
signed contract with Topica or upon successful completion of the
online purchase form on the Topica website 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.
Except as explicitly detailed in a signed contract or in the online
purchase process, you agree to maintain service with us for a minimum
term of one year. After the first and subsequent years, the agreement
will automatically renew as explained above in Billing and Renewal.
Termination of Service requires at least 30-days notice prior to the
renewal date. If notification to cancel is received by our Customer
Success department 30 days prior to the
renewal date, the agreement will expire at the end of the then-current
service period.
Accounts which were purchased online have a monthly renewal.
Termination of Service requires 30-days written 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.
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 or
graphic 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: December 16, 2006
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Topica has proved itself as a number one provider of email marketing tools, with
feature-rich, easy-to-use products and an outstanding customer support record.
We’re more than satisfied.
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Annie Shaw
Web Designer
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