Terms of Service
LEGAL AGREEMENT.
CandyMailer.com and its affiliates provide software, products, web sites, and technology (collectively, the "CM Services"). These CM Terms of Service comprise a legal agreement ("Agreement") between You (the customer submitting an order form associated with this Agreement or otherwise using CM Services) and CM and govern Your use of CM Services. BY ORDERING CM SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, AS MODIFIED FROM TIME TO TIME. If you do not agree to these Terms of Service, do not order or use any CM Service.
"You" means You, Your company, Your employees, and anyone who has access to use Your CM account. You must be at least eighteen (18) years of age to subscribe to and use any CM Service.
You agree to familiarize Yourself with, and to regularly review, the Terms of Service, and other terms and guidelines published by CM and abide by them if You choose to use the CM Services to which such terms apply. CM reserves the right to change the Terms of Service at anytime without notice. If You continue to use CM Services after any such changes, Your continued use will constitute Your consent to such changes. CM agrees to identify the date of last revisions of its Terms of Service.
If You do not have print capability and desire to obtain a hard copy of these Terms of Service, please send CM an email requesting a hard copy. You may also click on the link to "Terms of Service" at the bottom of each page of CM web sites for a copy of these Terms of Service, which may be printed and saved through the printing and saving capability of your browser and printer.
If you have questions about these Terms of Service, please contact CM at support@CandyMailer.com.
YOUR WARRANTIES
By subscribing to or receiving any CM Service, You make the following representations and warranties. CM shall have the right to terminate your CM account, without notice at any time, if any representation or warranty made by You proves to be untrue in any respect.
You represent and warrant that:
You and all users of the CM Service approved by you are at least eighteen (18) years of age;
You have the legal capacity and authority to: (a) enter into binding contracts for the sale and purchase of goods and services, (b) be bound by these Terms of Service, (c) subscribe to and use the CM Service, including, where applicable, the buying, selling and listing of items, in accordance with these Terms of Service, and (d) if you are acting in a corporate capacity, bind Your company;
You will not use the CM Service for any purpose that is unlawful, or prohibited by these Terms of Service (as may be modified from time to time);
All information and content supplied by You or by others using any CM Service, including but not limited to all information submitted as part of the registration and subscription process and all content included in e-mails delivered by you via any CM Service (collectively, "Customer Content"), is true and accurate;
Any products or services advertised, sold or otherwise distributed by You on or in connection with any Customer Content are legal for sale or distribution; that you have all licenses necessary to sell or advertise the goods or services offered for sale or distribution and that all sales and advertisements will be in compliance with applicable law;
You own or have the right to use all of the intellectual property, proprietary and similar rights necessary for all Customer Content, and all products and services sold or otherwise distributed by You or on Your behalf that are referred to in the Customer Content;
Your delivery of emails in connection with any CM Services is in full compliance with anti spam acts applied.
You have secured required permission to use any person's name, voice, likeness or performance as embodied in any Customer Content, and nothing in the Customer Content will otherwise infringe on the privacy or publicity right of any individual.
By using the CM Service, You agree that You will defend and indemnify CM and its suppliers from any third party claim related to a breach of any of the foregoing warranties.
E-MAIL CAMPAIGNS:
CM provides e-mail marketing software for newsletters, surveys, press releases, and other customer communications.
CM may only be used in connection with e-mail lists for which recipients have voluntarily registered. Using CM to send e-mail to an address You obtain without the consent of such addressee is a violation of the CM Terms of Service. You may not access the mailing lists of third parties on CM Services, and You may not access or otherwise use such third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You may not import any e-mail addresses to Your list that have not chosen to receive Your mailings. You may only send e-mail to customers that have willingly signed up to receive Your mailings. If CM receives complaints about Your list, Your list will be reviewed and may be terminated. You may not send mail under any company or organization name other than Your own and/or with fraudulent header or source information.
If You use CM to create a mailing list (a "Mailing List"), You may remove any e-mail address contained therein from such Mailing List at Your discretion. You agree to honor the request of the owner of any e-mail address to remove that address from a Mailing List within ten (10) business days after receipt of such request. You may establish additional terms and conditions that may be applied to persons subscribed to Your Mailing Lists.
If You register with a Mailing List, You acknowledge that the owner of the mailing list may remove Your e-mail address from such Mailing List, in its discretion and at any time, and that Your participation in such Mailing List may be subject to additional terms and conditions that may be changed from time to time.
CM may include in every e-mail sent by any CM Service a statement similar to the following: "Powered by CM".
LIMITATIONS ON YOUR USE OF CM SERVICES
CM Services are provided to assist You with the operation of Your business. Your right to use the CM Service is limited to You, Your company and its employees. You are solely responsible for Customer Content and all use of Your CM account. CM reserves the right, but is not obligated, to monitor or to review Customer Content and to monitor your compliance with these Terms of Service. CM reserves the right in its sole discretion to: (a) refuse to provide CM Services if You violate these Terms of Service, and/or (b) edit, refuse to post, or remove any Customer Content that violates the Terms of Service, without notice at any time.
You may not: (a) restrict or inhibit any other user from using and enjoying such user's rights in CM Services, or (b) interfere with or disrupt our CM Servers or servers or any network connected to CM Services.
In addition, You may not use the CM Services to:
send unsolicited bulk email, for commercial or non-commercial purposes. Unsolicited bulk email is defined as email sent to more than 10 individuals without their permission;
rent, lease, license, grant a security interest in, or otherwise transfer or sublicense Your rights hereunder to any third party;
defame, libel, slander, impersonate, abuse, harass, threaten, invade the privacy of or otherwise violate or infringe the legal rights (including the rights of privacy and publicity) of any other person;
conduct, promote or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, or multi-level or illegal marketing campaigns;
harm minors in any way;
publish, post, distribute, disseminate, advertise or link to any: (i) content, site, topic, name, material or information which is inappropriate, profane, defamatory, libelous, slanderous, infringing, obscene, indecent, or which contains nudity or adult content; (ii) software, content or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless You own or control such rights or have received all necessary consents for Your publication, distribution, or linking of such software and other materials; (iii) software, content or other material that contains viruses, worms, corrupted files, cracks or that may or are intended to damage the operation of or render inoperable another's computer, hardware, software, security measures or system or other programs written to defeat the security measures of any computer, system or programs; (iv) software, content, other material or Web site that constitutes "hate speech", whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group;
sell, offer to sell, distribute, promote, facilitate, disseminate or link to any sites for marketing, sales, promotion, facilitation or distribution of: firearms; explosives; ammunition; liquor; tobacco products; illegal gambling (including gambling in connection with sporting events); food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants; illicit drugs, pharmaceuticals and controlled substances; counterfeit, pirated or stolen goods; any goods or services that infringe or otherwise violate a third party's rights including copyright, patent, trademark, or rights of publicity or privacy; goods that are considered indecent, obscene or pornographic; Nazi memorabilia; registered or unregistered securities; goods or services that You cannot legally sell; goods which are misrepresented or which do not in fact exist; fraudulent goods; or any other illegal activity;
harvest or otherwise collect information about third parties, including e-mail addresses, without the express consent of such third parties;
violate any applicable government laws or regulations.
USE AND OWNERSHIP OF SOFTWARE
Subject to the terms and conditions of this Agreement, CM grants You, and You accept, a nontransferable and nonexclusive license to use in object code form only any software used in connection with CM services or made available to download on CM sites (the "Software") solely for Your purposes using Your data, and not for the benefit of any third party (unless otherwise agreed in writing by CM). You may use and access the Software made available over the Web only through authorized CM web sites. You agree to use reasonable security measures to minimize the risk of unauthorized access to and use of the Software.
The Software may be used and accessed only by You using the Software for its intended purpose while doing Your work.
You acknowledge that CM is the sole owner of all intellectual property rights in and to the Software and all web sites provided by CM in connection with the CM Services (the "Sites"), including but not limited to the structure, organization, design, algorithms, methods, templates, data models, data structures, logic flow, and screen displays associated therewith. All customizations, enhancements, modifications and new code made available to You pursuant to this Agreement shall be deemed "Software" hereunder and shall be owned by CM. Except as expressly authorized in this Agreement, You will not copy, modify, display, rent or unbundle the Software. In addition, You will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. The Software and the Sites (collectively, the "Licensed Product") shall be used only to You for Your sole and exclusive benefit, and shall not be used to provide time-sharing or other similar services for the benefit of any third party. CM reserves all rights in the Licensed Product not expressly granted to You hereunder.
Your use of Software made available for downloading by CM may also be governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). To the extent that the License Agreement conflicts with the Terms of Service, the terms of the License Agreement shall govern Your use of the Software. You may not install or use any Software that is accompanied by or includes a License Agreement unless You first agree to the License Agreement. In addition, You shall keep intact all and may not alter any copyright and other proprietary notices contained in the Software. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. You acknowledge that the Software, and any accompanying documentation and/or technical information, is subject to applicable laws and regulations. You agree not to export or re-export the Software, directly or indirectly, to any countries.
FEES
You agree to pay the fees for CM Services in the amount and frequency as set forth in the applicable order form. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your CM account by You or anyone else using Your account. CM reserves the right to modify the fees charged for CM Services from time to time, provided that such new fees shall not take effect earlier than thirty (30) days after CM provides notice to You of such modified fees.
In the event You upgrade to a higher or additional service during the term of this Agreement, You agree to pay on a pro-rata basis the additional fee amount associated with such service, based on the time between the last payment associated with Your fee plan and Your next scheduled payment. Except as expressly set forth in this Agreement, CM is not required to refund to You any amounts paid hereunder. It is Your responsibility to notify CM if Your credit card has changed or has expired and to make appropriate changes or Your service may be disconnected or interrupted.
All payments under this Agreement shall be made in United States dollars.
LINKS TO THIRD PARTY SITES
Links within the CM service may let You leave the CM site. You acknowledge that the linked sites are not under the control of CM and that CM is not responsible for the contents or operation of such linked sites or any link contained in such linked site, any changes or updates to such sites, or any form of transmission received from any linked site. CM is providing these links to You only as a convenience, and the inclusion of any link does not imply endorsement by CM of the linked site or any association with their operators.
LIMITATIONS OF LIABILITY AND DISCLAIMERS
The information, software, products, services and other material included in or available through CM Services may not be complete, and may include inaccuracies or errors, and may also be modified, discontinued or deleted from time to time without notice. Advice, information, products, services or other materials received via CM Services should not be relied upon for personal, medical, legal, business, financial or other decisions and is not intended to replace the advice of appropriate and qualified professionals.
CM warrants that it will use commercially reasonable efforts to provide the ordered CM Services in accordance with the terms and conditions in the applicable order form. Otherwise, CM makes no guarantees of any kind regarding the dependability, accuracy, security, timeliness or availability of the CM Services. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ALL CM SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND CM AND ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE CM SERVICES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
IN NO EVENT SHALL CM OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF CM OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, CM OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR:
DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF CM SERVICES, OR
WITH THE DELAY OR INABILITY TO USE CM SERVICES;
IF YOU ARE DISSATISFIED WITH ANY PORTION OF CM SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING CM SERVICES.
Without limiting the foregoing, CM is not responsible for any of Your data residing on CM hardware or systems, including such hardware or systems provided to CM by third parties. You are responsible for maintaining and backing-up Your data and information that may reside on CM hardware or systems, including such hardware or systems provided to CM by third parties, whether or not such information is produced through the use of CM, including all Customer Content.
CM is not liable for Your actions with Your customers or vendors, or the use of their information, or for any other actions arising from Your use, or the use of other parties to whom You have given access to Your CM information, through the use of CM Services.
CM is not involved in any transaction between You and Your buyer or seller or other third parties with whom you may have transactions through Your web site or between You and any user of any products or services offered or provided by You or by a third party through any CM Service. CM is not responsible for screening, censoring or otherwise controlling your Customer Content, or any listings or transactions offered or conducted via your Customer Content. You are deemed to have a direct commercial relationship with each third party that purchases goods or services from or undertakes any other transaction with You. CM is not acting as Your or any third party's agent in connection with the operation of CM Services. Further, because CM is not involved in any orders or other transactions between You and other users of CM or other marketplace forums, CM cannot and will not be involved in resolving any disputes relating to any completed or uncompleted transactions or the purchase or sale of listed goods or otherwise.
INDEMNITY
You agree to defend, indemnify and hold CM and its suppliers harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys' fees) arising from Your violation of these Terms of Service, or any third-party's rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights). These obligations will survive any termination of Your relationship with CM or Your use of CM Services.
ACCESS RESTRICTION; ACCOUNT SECURITY AND PASSWORDS
You may not use a name in connection with operating Your CM account that is confusing or misleading to participants, or otherwise impersonate or deceive participants with respect to Your identity.
You are responsible for safeguarding the confidentiality of Your account information (including password(s) and user name(s) issued to You) and for any use or misuse of Your account or CM Services resulting from any third party using a password or user name issued to You. You agree to notify CM immediately of any known or suspected unauthorized access to or use of Your account, Your password, the password of any individual user to whom You have issued a login ID or any other breach of security or misuse of the CM known to or suspected by You. You may change Your password at any time by following instructions on the CM web site.
You hereby authorize CM to rely on any data, notice, instruction or request furnished by You to CM, or that CM reasonably believes to have been furnished by You. You are solely responsible for maintaining the confidentiality of Your account information and monitoring usage of Your account. CM is not responsible for fraud of participants or of other users of your account.
PRIVACY; YOUR CUSTOMER DATA
CM will not use Your customer data or Your customer contact list for any purposes other than those intended by the CM Service. Your customer information will not be shared with any other parties, unless you are also subscribing to a CM Service where one of the features of such service is the sharing of customer information between services.
CM will not use Your customer information for the purpose of sending unsolicited commercial e-mail to such customers. For more information about CM's privacy and information practices, please see CM's Privacy Statement.
GENERAL
These Terms of Service are governed by the related laws. You hereby irrevocably consent to the exclusive jurisdiction and venue of related courts. in all disputes arising out of or relating to the use of the CM Services.
You agree that no joint venture, partnership, employment, or agency relationship exists between You and CM as a result of these Terms or Service or use of CM Services.
CM's performance of this Agreement is subject to existing laws and legal process, and nothing contained in these Terms of Service are in derogation of CM's right to comply with governmental, court and law enforcement requests or requirements relating to Your use of CM Services or information provided to or gathered by CM with respect to such use.
If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect.
Unless otherwise specified herein, these Terms of Service, the Anti-Spam Policy and the Privacy Policy constitute the entire Agreement between the user and CM with respect to CM Services and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and CM with respect to CM Services.
CM reserves the right to disclose any information, content, or materials as necessary to satisfy any applicable law, regulation, legal process or government request or in accordance with CM's Privacy Statement.
Any rights not expressly granted herein are reserved by CM, including all legal and equitable remedies available to CM upon Your violation of any of these Terms of Service.
TRADEMARKS
CandyMailer.com and CandyMailer.com logo are service marks of CandyMailer.com, Inc. Date: September 1, 2007