Mailnet
Services, Inc. dba Conclusive Marketing
License and Services Agreement
This
License and Services Agreement (Service Agreement) contains the terms and
conditions that apply to a user of the Mailnet Services, Inc dba Conclusive Marketing websites (“Website(s)”) as defined
below) unless otherwise stated herein. Please read these terms and conditions
carefully.
By clicking on the I ACCEPT button, you acknowledge that you
have agreed to all of the terms of this Service Agreement and that you have
agreed to become a party to, and legally bound by, this Service Agreement. If
you do not agree to all of the terms of this Service Agreement, click on the I DECLINE button. You will not be able to use the
Service if you click on the I DECLINE button.
This Service
Agreement describes the terms and conditions applicable to your use of the
Website(s) at Mailnet Services, Inc. (Mailnet Services). Some terms of this
Agreement may be incorporated by reference by way of a hyperlink that may be
viewed by clicking on this hyperlink. If you have any questions regarding this
Service Agreement, please contact custserv@mailnetservices.com.
This Service Agreement was last revised on November 1, 2007.
Mailnet
Services offers various Internet application services that integrate turnkey
marketing communications, database services and digital asset management. Through a secure Internet connection,
organizations have instant marketing campaigns available. Through Mailnet Services
fully automated Websites, Customer (also referred to as you from time to time)
can select online design, delivery, and data management services.
1.
This
License and Services Agreement (Service Agreement) governs the messaging services,
list rental, ad building and other related services provided by Mailnet
Services to Customer under this Service Agreement as described in detail within
the Site, which services may change from time to time in the sole discretion of
Mailnet Services (collectively, the Service).
2.
The
charges for the Service provided by Mailnet Services to Customer shall be the
prices set forth upon the customer order completion Websites or as agreed upon
otherwise. Such prices may be changed from time to time by Mailnet Services, in
Mailnet Services sole discretion as described in the Standard Terms and
Conditions. Customer agrees to pay for the Service as provided herein.
3.
The
Standard Terms and Conditions attached hereto are incorporated by reference and
made part of this Service Agreement. Customer acknowledges that it has read all
of the Standard Terms and Conditions, including, without limitation, all
warranty disclaimers, and limitations of liability, and Mailnet Services and
Customer agree to be bound by same.
4.
Customer
acknowledges that it understands, accepts, and agrees to be bound by the terms
and conditions of this Service Agreement, including the Standard Terms and
Conditions, and that it is duly authorized to execute this Service Agreement on
Customers behalf.
5.
The term
of this Service Agreement shall commence upon the date of execution by Mailnet
Services (Effective Date).
The following Standard Terms and Conditions
(the Standard Terms and Conditions) apply to and are a part of the Service
Agreement between Mailnet Services and Customer. No purchase order or other
documentation of Customer pertaining to the Service Agreement or the Service
covered thereby shall modify, contradict or otherwise change these Standard
Terms and Conditions or the other provisions of the Service Agreement. In the
event of any inconsistency, these Standard Terms and Conditions and the other
provisions of the Service Agreement shall control. When referred to
individually, Mailnet Services and Customer may each be referred to herein as a
"Party" and collectively as the "Parties."
1.
Scope
of the Service.
Subject to Mailnet Services acceptance of the Service Agreement, Mailnet
Services agrees to provide the Service to Customer under the terms and
conditions of the Service Agreement.
2.
Term
and Termination.
A.
This
Service Agreement shall commence as of the Effective date and shall continue
thereafter unless terminated by either Party on thirty (30) days prior written
notice. Notwithstanding the foregoing, either Party may terminate this Service
Agreement immediately in the event of a breach or a threatened breach of this
Service Agreement by the other Party and Mailnet Services shall have the right
to immediately terminate this Service Agreement in the event that Mailnet
Services determines, in its sole discretion, to suspend offering the Service to
Customer.
B.
The
provisions of the Service Agreement that by their nature survive
termination will survive, but in all other respects the obligations of
the Parties created by the Service Agreement will cease upon termination of the
Service Agreement. Customer agrees that it will not be entitled to receive any
compensation, damages, or indemnification of any sort arising out of
termination of the Service Agreement in accordance with its terms.
3.
Access
to the System.
A.
In order
to access the Service, the customer shall specify a user name (the Logon ID)
and password (the Password) for security purposes as part of the sign-on
procedure.
B.
Customer
shall take such actions as are necessary in order for it to maintain the
confidentiality of, and in order to prevent the unauthorized use of, each Logon
ID and Password. It is Customer's responsibility to ensure that any Logon ID
and Password is known only to users authorized by Customer (the
"Authorized Users"). Customer agrees to notify Mailnet Services
immediately in the event that Customer has determined, or has reason to
believe, that any other unauthorized party has gained access to a Logon ID or
Password.
C.
Customer
hereby authorizes Mailnet Services and any party claiming through Mailnet
Services to rely upon any information entered by Customer or its Authorized
Users in connection with the use of the Services and/or instructions set forth
in any data transmission using the Logon ID or Password, without making further
investigation or inquiry, and regardless of the actual identity of the
individual transmitting the same, in connection with the use of the Services.
D.
Customer
shall indemnify and hold harmless Mailnet Services from any and all
consequential, incidental, special or indirect damages (including lost profits)
resulting from, arising out of or relating to the use of Customers Logon ID and
Password, whether authorized or unauthorized.
4.
Licenses
and Restrictions.
A.
Mailnet
Services grants a license to Customer to use the Service under the terms and
conditions of this Service Agreement. No right or license shall be implied by estoppel or otherwise, other than the rights and licenses
expressly granted in this Service Agreement.
B.
Except
as otherwise expressly provided in this Service Agreement, nothing in this
service Agreement shall be construed to constitute a grant, transfer,
assignment, or license by Mailnet Services to Customer of Mailnet Services
property, including, without limitation, property interests in Mailnet Services
trademarks, service marks, trade names, inventions, technology, patents, or
copyrights. Unless otherwise agreed by the Parties, Customer agrees to use the
Service for its own use only and will not resell the Service to a third party,
or allow others to use the Service.
C.
In the
case of list rental services provided, Mailnet Services grants Customer a
license to possess and use the data along with any updates solely in accordance
with these terms and conditions herein.
5.
Copyright.
The Service, and underlying software (the Software) (including any images,
applets, photographs, video, audio, music, and text incorporated into the
Software) is owned or licensed by Mailnet Services or its suppliers or
licensors and is protected by United States and international copyright laws.
Customer must treat the Service and the Software like any other copyrighted
material (e.g., a book or musical recording). Mailnet Services and its
suppliers own and retain all right, title and interest in and to the Service
and the Software, including patents, trademarks, copyrights, trade secrets, and
other intellectual property rights embodied or contained therein. Customer may
not use, copy, or distribute the Service and the Software in any manner
inconsistent with the terms of this Service Agreement.
6.
Pricing.
Customer agrees to pay Mailnet Services all fees and charges (including applied
sales taxes) in connection with the Services as set forth within the Site upon
order completion, which fees and charges may be changed from time to time in
Mailnet Services sole discretion through posting of such changes on its Site.
All past due invoices shall incur interest at a rate of 1% per month or the
maximum lawful rate, whichever is less.
Ownership title for the products and services purchased on the Websites will
transfer at the point of origin. In the case of direct mailing campaigns this
would be the location that the mailing is presented and given to the USPS for
distribution to the mailing campaign recipients.
7.
Duties
and Responsibilities of Mailnet Services.
A.
Subject
to the terms of this Service Agreement, Mailnet Services shall provide Customer
with the Service.
B.
Due to
the dynamic nature of the Internet, variation in broadband and differing
hardware specifications, Mailnet Services cannot and does not guarantee that
the Service will always be available or uninterrupted or that the viewing
quality will be as good as possible. Notwithstanding, Mailnet Services will
make its best efforts to make the Service available to the extent possible
within its reasonable control. Unless otherwise specified in this Service
Agreement, Mailnet Services is not responsible for providing any connection
equipment or other equipment or software to Customer to enable it to receive
and utilize the Service and Mailnet Services shall not be responsible for
equipment of any kind that is not provided by Mailnet Services. Mailnet
Services shall not be responsible for any changes in the Service because
equipment or software not provided by Mailnet Services become obsolete, require
modification or otherwise affect performance of such equipment or software.
8.
Duties
and Responsibilities of Customer.
A.
Unless
otherwise provided in the Service Agreement, Customer shall, at its own
expense, provide all necessary preparations and equipment required to comply
with Mailnet Services' use, installation and maintenance specifications for the
Service.
B.
It is
fully Customers responsibility to safely maintain the Login ID and Password.
Mailnet Services shall bear no liability for any losses incurred by Customer
due to use of the Login ID and Password by other than Authorized Users, by
Authorized Users or for any other reason whatsoever.
C.
Customer
shall not, nor shall it permit or assist others to: (1) use the Service for any
unlawful purpose or for any purpose other than that for which it is intended;
(2) fail to maintain any equipment it provides in accordance with either
Mailnet Services, or the relevant equipment manufacturer's, specifications; or
(3) alter, tamper with, adjust, or repair the Service.
D.
Customer
shall not, nor shall it permit or assist others to, abuse or fraudulently use
the Service, including, but not limited to, the following circumstances: (1)
obtaining or attempting to obtain Service by any means or device with intent to
avoid payment; (2) unauthorized access, misappropriation, alteration,
destruction, or any attempt thereof; (3) using the Service so as to interfere
with the use of the Mailnet Services network by other customers or authorized
users, or in violation of the law, or in aid of any unlawful act; or (4) using
the Service in a manner which, in the sole opinion of Mailnet Services, is not
in accordance with the generally accepted rules of Internet or other pertinent
conduct and etiquette as may be reasonably adopted and interpreted by Mailnet
Services.
E.
Upon the
occurrence of any violations of Customer's commitments under this Section,
Mailnet Services shall be completely released from any liability or obligation
(including any warranty or indemnity obligations) to Customer relative to the
Service and may suspend its performance and/or terminate the Service Agreement,
and Customer shall be liable to Mailnet Services for costs or damages incurred
by Mailnet Services resulting therefrom. Further,
Mailnet Services may, without further notice, and in addition to all other
remedies, suspend its performance and/or terminate the Service Agreement with
no further obligation to Customer.
F.
Customer
agrees to execute and abide by the terms and conditions of any license
agreement (a copy of which shall be provided by Mailnet Services) designed to
protect intellectual property rights in any aspects of the Service or Software
as may be required from time to time by Mailnet Services or by its licensors.
Termination of any of such license agreements by Mailnet Services or the
licensor in respect of Customer or otherwise may result in immediate
termination of the Service Agreement by Mailnet Services.
G.
Customer
hereby represents, warrants and covenants to Mailnet Services that the
encoding, storage, transmission, retransmission, and all copying contemplated
by this Service Agreement or necessary to effectuate these activities, and
Mailnet Services exercise of any other rights granted by Customer herein, will
not violate or infringe any right of privacy or publicity, any copyright,
trademark, moral right or other intellectual property right, or any other right
of any third party.
H.
Customer
warrants and represents that it has the legal right to possess, use or view any
and all electronic data it transmits utilizing the Service.
I. The following online conduct policies (collectively, the
"Online Conduct Policy") are complementary to and are incorporated as
part of the Terms of Service of the Agreement. Customer’s use of the Websites will be
governed by the following rules of conduct:
The Customer
specifically agrees not to submit, publish, or display on the Websites any
defamatory, inaccurate, abusive, obscene, profane, sexually oriented,
threatening, racially offensive, or illegal material;
nor will the Customer encourage the use of controlled substances. Transmission
of materials or information in violation of any local, state or federal law is
prohibited and is a breach of the Terms of Service.
Mailnet
Services may remove content deemed to be unacceptable or in violation of the
Terms of Service. Mailnet Services, at its sole discretion, further reserves
the right to immediately terminate, without Notice, a Customer who misused the
site to publish and/or distribute materials that are in breach of the Terms of
Service.
The Customer
specifically agrees not to upload, post or reproduce in any manner any
materials protected by copyright without the permission of the copyright owner.
The Customer
specifically agrees to indemnify Mailnet Services for any losses, costs, or
damages, including reasonable attorney's fees incurred by Mailnet Services and
relating to, or arising out of, any breach of this Online Conduct Policy or
other Terms of Service by the Customer.
This
service is to be used by the Customer for his/her to create promotional
materials for the registered business only.
J.
Customer
agrees to use all data received from Mailnet Services, only in strict
compliance with all applicable federal, state, and local laws, rules, and
regulations, including do not call and do not fax regulations. Customer agrees
that marketing materials (eg. Mail-pieces and
telemarketing scripts) used in connection with data provided, will conform to
the Direct Marketing Associations' Ethical Guidelines, a copy which can be
found at http://www.the-dma.org/guidelines/index.shtml .
Customer acknowledges that it is Customer's sole responsibility to determine
the applicability of any such laws, rules and regulations. Customer is solely
responsible for the use of the product and data.
K. Customer will
maintain current, accurate and complete books and records relating to its use
of the rented lists for a period of at least twelve (12) months after each
marketing communication. In addition to financial detail, Customer shall
maintain a file of the latest twelve (12) months of communications, to include
sample mail pieces, telemarketing scripts, ad copy or other communications that
Customer has used, and a list of each state to which the marketing
communication has been made using the Lists. At their own expense, Mailnet, or
any representative designated, will have the right to examine and copy or make
extracts from all such books and records and any source documents used in
preparation thereof, related to the rented lists, at any time during normal
business hours, provided Mailnet Services gives Customer written notice at
least three (3) business days prior to any such examination.
9.
Systems
Not Provided By Mailnet Services.
Unless otherwise agreed to by the Parties in writing, Customer shall be
responsible for the selection, use, installation, maintenance, configuration,
and compatibility of equipment and software not provided by Mailnet Services,
notwithstanding any Mailnet Services specification or recommendation therefor. In the event that such equipment or software
impairs Customer's use of the Service, Customer shall nonetheless be liable for
payment to Mailnet Services for provision of the Service. Upon notice from
Mailnet Services that the equipment or software not provided by Mailnet
Services is causing, or is likely to cause, a hazard, interference, or
obstruction of the Service, Customer shall eliminate such hazard, interference,
or Service obstruction. Mailnet Services reserves the right to discontinue the
Service until such hazard, interference, or obstruction is corrected.
10.
Disclaimer
of Warranty.
The Service is provided as is without warranties of any kind unless
expressly set forth in this Service Agreement. Customer assumes all risks and
responsibilities for the selection of the Service to achieve its intended
results. Customer is responsible for the use of the Service. Mailnet Services
makes no warranty that the Service will be error-free or free from interruption
or failure.
Customer hereby acknowledges that the Service may not be or become available
due to any number of factors, including, without limitation, periodic system
maintenance, scheduled or unscheduled, acts of God, or technical failure of the
Software or telecommunications infrastructure. Mailnet Services expressly
disclaims any express or implied warranty regarding Service availability,
accessibility or performance.
To the maximum extent permitted by law, Mailnet Services and its suppliers
specifically disclaim all warranties, express or implied, regarding the
Service, including any implied warranties of merchantability or fitness for a
particular purpose, as well as all warranties of quiet enjoyment, warranties of
merchantability for computer programs, implied warranties for informational
content, and implied warranties of fitness. Mailnet Services does not warrant
that the Service and underlying Software is free from bugs, viruses, errors, or
other program limitations nor does Mailnet Services warrant access to the
Internet, or to any other service through the Service.
Some states do not allow the exclusion of implied warranties, so that the
above exclusions may not apply to Customer. In that event, any implied
warranties are limited in duration to sixty (60) days from the use of the
Service. However, some states do not allow limitations on how long an implied
warranty lasts, so the above limitation may not apply to Customer. This
warranty gives you specific legal rights, and you may also have other rights
which vary from state to state.
In
the case of its list rental services, Mailnet Services "brokers" data from various sources
and where appropriate those databases have been verified. Mailnet cannot and
does not assume any liability for the correctness or comprehensiveness of the
Information.
11.
Limitation
of Liability.
A.
Under no
circumstances shall Mailnet Services be liable, whether in contract, tort, or
other legal theory, for unauthorized access to Customer's network or for
unauthorized access to or alteration, theft, duplication, or destruction of
Customer's data files, programs, procedures, or information through accident,
alleged fraudulent means or devices, or any other cause or method.
B.
Mailnet
Services shall not be liable for claims or damages resulting from or caused by:
(1) Customers fault, negligence or failure to perform Customers
responsibilities; (2) claims against Customer by any other party; (3) any act
or omission of any other party; and (4) equipment or services furnished by a
third party.
C.
In no
event will Mailnet Services be liable for any indirect, incidental, special, or
consequential damages, or damages for loss of profits, revenue, data, or use,
whether in an action or proceeding in contract, tort, or otherwise even if
Mailnet Services has been advised of the possibility of such damages and
whether or not caused by the intentional acts or omissions or negligence of
Mailnet Services, its employees or agents. In no event will Mailnet Services
liability arising out of or relating to the Service Agreement exceed the amount
paid by Customer to Mailnet Services for the Service to which such liability is
claimed. Some states do not allow the exclusion or limitation of incidental or
consequential damages, so the above limitations or exclusions may not apply to
you.
12.
Indemnities.
A.
Customer
agrees to indemnify and hold harmless Mailnet Services and its officers,
directors, employees, agents, parents, subsidiaries, affiliates, licensors, and
third-party subcontractors from and against any and all losses, claims,
damages, liabilities, obligations, penalties, judgments, awards, costs,
expenses, and disbursements, including without limitation, the costs, expenses
and disbursements, as and when incurred, of investigating, preparing or
defending any action, suit, proceeding, or investigation, caused by, relating
to, based upon, arising out of or in connection with any breach by Customer of
the representations, warranties or agreements made by it under this Service
Agreement.
13.
General.
A.
The
Service Agreement may not be assigned or otherwise transferred by Customer
without the prior written consent of Mailnet Services. Mailnet Services may
subcontract any of its obligations hereunder.
B.
If any term
or provision of the Service Agreement shall to any extent be invalid or
unenforceable, the remainder of the Service Agreement shall not be affected
thereby and each term and provision of the Service Agreement shall be valid and
enforceable to the fullest extent permitted by law.
C.
The
headings in the Service Agreement documents are included only for convenience
and shall not control or affect the meaning or construction of the Service
Agreement.
D.
The
Service Agreement forms the entire agreement between the Parties with respect
to the Service. It supersedes all prior or contemporaneous agreements,
understandings, or representations with respect to the subject matter hereof
and, except as expressly provided therein, may not be modified or amended
except in writing signed by both Parties. Notwithstanding the foregoing, in the
event and to the extent that any tariffs have been or are filed respecting
Service ordered by Customer, then the terms set forth in the applicable tariff
shall apply to such Service including to Mailnet Services sale and delivery and
Customers purchase and use thereof.
E.
No
waiver of any violation or nonperformance of the Service Agreement in one
instance shall be deemed to be a waiver of any subsequent violation or nonperformance.
All waivers must be in writing.
F.
All
notices given under the Service Agreement shall be in writing and deemed duly
given upon personal delivery (including courier service), overnight mail
delivery, or five (5) days after deposit, postage prepaid, in the first class
mail of the United States properly addressed to the other party at the address(es) noted on the Service Agreement, or at any other
address(es) as the Party may designate by ten (10)
calendar days prior written notice given in accordance with this provision.
G.
Neither
Party shall be liable to the other for acts or failures of performance beyond
its reasonable control including, but not limited to, acts of God, or public
enemy, acts of other parties, governmental laws, regulations or requirements,
the acts or failure to act of any governmental authority, acts of civil or
military authority, labor disputes, fires, riots, wars, embargoes, epidemics,
floods, unusually severe weather, or shortage or absence of power or fuel. This
provision shall not apply to obligations to pay money.
H.
Unless
otherwise agreed to by the Parties, Customer will act at all times as an
independent contractor and will have no right or authority to act on behalf of,
create any obligation for, or bind Mailnet Services in any way. Nothing in the
Service Agreement will be deemed to create a partnership or joint venture
between the Parties.
I. All questions
concerning the validity, operation, interpretation, construction,
and enforcement of this
Service Agreement, including these Standard Terms and Conditions, will be
governed by and determined in accordance with the laws of the State of Tennessee, provisions of
conflicts of laws notwithstanding. This Service Agreement will be submitted to
binding arbitration in Davidson County, Tennessee, pursuant to the Commercial
Arbitration Rules of the American Arbitration Association, and judgment on the
award may be entered in any court of competent jurisdiction; provided, however,
that either Party may seek preliminary injunctive or other equitable relief
pending arbitration to prevent irreparable harm. In determining and issuing
awards pursuant to any arbitration commenced hereunder the Parties expressly
agree and hereby instruct the arbitrator(s) to make determinations that are, to
the greatest extent feasible, consistent with these Standard Terms and
Conditions. In the case of any award against Mailnet Services, the limitations
in Section 11 hereof shall apply. The prevailing party in any arbitration or
litigation shall be entitled to recover all reasonable expenses thereof,
including attorneys fees in connection with such
proceedings or any appeal thereof.