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TERMS OF SERVICE

CLIENT AGREEMENT AND SOFTWARE LICENSE TERMS

Email Fusion provides small- and medium-sized businesses and organizations with a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns.

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 Email Fusion, 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:

  • Email Fusion may not be used for the sending of unsolicited email (sometimes known as "spam").

  • Email Fusion may be used only for lawful purposes.

  • Your use of the Service is subject to the Prohibited Content and Commerce Statement.

  • The Services will be subject to monthly subscription fees ("Paid Services") once you have completed your free trial period or have exceeded the free subscriber limit.

  • Email Fusion will not use your customer list/subscriber list or any other customer information for any purposes other than those intended with the Service.

  • You agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email.

  • You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used) in connection with your use of the Services.

  • Every email message sent in connection with the Services must contain the Email Fusion "unsubscribe" link that allows subscribers to remove themselves from your mailing list.

  • You agree to process unsubscribe requests within a 10-day timeframe.

  • You will adopt and maintain the email privacy policy, which may be modified by Email Fusion as necessary.

2. SERVICES AND SUPPORT

  • 2.1 The Services are provided subject to this Agreement, as it may be amended by Email Fusion, as deemed necessary. Email Fusion may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service or at Email Fusion'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.

  • 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 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, your account will be subject to monthly subscription maintenance fees. You will be required to submit payment for the Services and may purchase, in advance, a monthly subscription maintenance package 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 the Services will be billed monthly at a rate subject to your specific package. The Fee Schedule is subject to change at Email Fusion's discretion. Email Fusion will attempt to notify you via email prior to the effectiveness of any change to the Fee Schedule.

  • 3.3 Payment for the Services will be made by a valid credit card accepted by Email Fusion. 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 Email Fusion to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period. If Email Fusion is, for any reason, unable to effect automatic payment via your credit card, Email Fusion will attempt to notify you via email and your Email Fusion 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 Email Fusion, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by a third party.

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 satisfactory to Email Fusion in form and substance. 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).

  • 4.3 If you have used the Email Fusion 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 an Email Fusion template or any other features or functionality from the Service 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 Email Fusion account.

  • 4.6 Emails that you send through the Service may generate abuse complaints from recipients. As a matter of privacy, Email Fusion 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.

  • 4.7 Images hosted by Email Fusion 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 Email Fusion Prohibited Content and Commerce Policy.

  • 4.9 Email Fusion, at its own discretion, may immediately disable your access without refund to the Services if Email Fusion believes in its sole discretion that you have violated any of the email and permission practices listed above, or the Email Fusion Prohibited Content and Commerce Policy.

5. RESTRICTIONS AND RESPONSIBLITIES

  • 5.1 Email Fusion will not use your customer list or any other customer information for any purposes other than those intended by 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.

  • 5.3 You may not display, copy, reproduce, or distribute the Software, any component thereof, or any documentation provided in connection with the Services or the Software. Violation of these restrictions may result in the termination of this Agreement.

  • 5.4 The Services shall be used for your internal business purposes only, and you shall not use the Services or any Software 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.

  • 5.5 You acknowledge and agree that the Services and the Email Fusion company names and logos and all related product and service names, design marks and slogans (collectively, the "Marks"), are the property of Email Fusion. You are not authorized to use any of the Marks in any commercial manner without the prior written consent of Email Fusion.

  • 5.6 You represent that you will use the Service only in compliance with the Agreement, the federal CAN-SPAM Act of 2003 and all other applicable 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 Email Fusion against any damages, losses, liabilities, settlements, and expenses 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 Email Fusion has the right to seek damages when you use the Services in a manner inconsistent with the terms of this Agreement. Although Email Fusion has no obligation to monitor the content provided by you or your use of the Services, Email Fusion 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.

  • 5.7 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 Email Fusion" or a similar message. You agree to cooperate with and provide reasonable assistance to Email Fusion in promoting and advertising the Services.

  • 5.8 In using the varied features of the Services, you may provide information to Email Fusion. Email Fusion 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.

TERMINATION

  • 6.1 You may terminate this Agreement at any time by calling Email Fusion Customer Support. There are no refunds for any fees paid.

  • 6.2 Email Fusion 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. Email Fusion shall have no liability to you or any third party because of such termination or action.

  • 6.3 Email Fusion 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. Email Fusion 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 days, Email Fusion has the right to permanently remove your subscriber data. Email Fusion will attempt to contact you via email prior to taking any permanent removal actions.

7. WARRANTY DISCLAIMER; REMEDIES

  • Use of the services and any reliance by you upon the services, is at your sole risk. Email Fusion does not warrant that the services will be uniterrupted 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 Email Fusion disclaims all warranties, express or implied.

  • Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for Email Fusion 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 shall Email Fusion be liable to you or any other person for any money damages, even if Email Fusion 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, Email Fusion is found liable to you for damages from any cause whatsoever, and regardless of the form of the liability of Email Fusion 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 to the maximum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

  • 10.2 This 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.

  • 10.3 No agency, partnership, joint venture, or employment is created by this Agreement, and you do not have any authority to bind Email Fusion 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 State of New York, 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 New York.

  • 10.6 Email Fusion is a trade name of Active Web Group.

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