Digital Pursuit, Inc. - Free Broadcast Email System Trial - Client Agreement
- a) Services Defined - DP provides e-mail marketing services.
- b) Password and Security - DP will provide Client with a user name and password access to Client's Digital Pursuit account within 4 business days of the execution of this Agreement by both parties (the Effective Date). Client is responsible for maintaining the confidentiality of its user name and password. DP shall in no way be responsible for any activities which occur under Client's password or account, including but not limited to any and all activities of its employees, agents and/or representatives. Client agrees to immediately notify DP of any unauthorized use of Client's account or any other breach of security known to Client.
- c) Training - DP will provide Client with up to one hour of training on Digital Pursuit's Broadcast Email System. Additional training requested by Client will first require that Client and DP enter into DP's standard Digital Pursuit Client Agreement.
- d) Support - DP will provide support by either e-mail or phone during the hours of 9am to 5pm Eastern Standard Time. Requests for service may be made by phone or by e-mail at firstname.lastname@example.org.
2. Term and Termination
3. Intellectual Property
- a) Term - This Agreement shall commence as of the Effective Date and shall continue for a period of 30 days thereafter.
- b) Termination by DP or Client - Either DP or Client may terminate this Agreement at any time and for any reason.
- c) Further Remedies - Any termination of this Agreement shall be without prejudice to the rights or remedies of either party to recover such damages as may be due it by reason of the other party's breach of this Agreement and terminating this Agreement shall not be a condition precedent to the recovery of damages for breach of this Agreement.
4. Warranties; Disclaimer; Remedies.
- a) DP Proprietary Rights - Client acknowledges and agrees that DP is the sole and exclusive owner of or has the right to license Digital Pursuit's Broadcast Email System and the related software, systems, database content and related documentation and all intellectual property rights therein and/or related thereto (DP Intellectual Property) and that DP does not convey any proprietary interest in or to the DP Intellectual Property other than the license rights expressly granted hereunder.
Client shall not copy, disclose, publish, display, or assign, transfer, sell, lend, sub-license or otherwise make available the DP Intellectual Property or copies thereof to third parties.
- b) No Rights in Digital Pursuit's Broadcast Email System - This is an Agreement for access to and use of Broadcast Email System and Client is not granted a license to any software by this Agreement. Client will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attemDP to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through Broadcast Email System or any software, documentation, or data related to Broadcast Email System (the Software); remove any proprietary notices or labels from Broadcast Email System or the Software, modify, translate, or create derivate works based on Broadcast Email System or the Software, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to Broadcast Email System or the Software.
- c) Permitted Use - Unless otherwise agreed in writing, Broadcast Email System shall be used solely for Client's internal business purposes and not for any timesharing or service-bureau purposes or otherwise for the benefit of a third party.
- d) Client Proprietary Rights - Client shall at all times retain sole ownership and exclusive rights to its data stored on Broadcast Email System. Execute as set forth in Section 3(e) below, DP shall have no right to disclose, distribute or sell Client data without the prior consent of Client; provided, however that DP may use the Client data in a format that aggregates the information of all or a portion of its clients (e.g. for statistical purposes and/or to create benchmark reports).
- e) Client License to DP - Client hereby grants to DP a non-exclusive, royalty-free license to reproduce, distribute and use publicly Client's trademarks, trade names, service marks and logos for the purpose of placing same in Client's outbound e-mail.
- f) Logo and Trademark Display; DP License to Client - DP agrees to permit the inclusion of a DP logo to be placed at the bottom of every outgoing e-mail message. DP hereby grants to Client a non-exclusive, royalty-free license to reproduce, distribute and use publicly DP's trademarks, trade names, service marks and logos for the purpose set forth in this Section 3(f).
- a) Client Warranties - Client represents, warrants and covenants that it will utilize Broadcast Email System in compliance with this Agreement and will comply with Digital Pursuit's E-Mailer Responsibilities and Guidelines, as amended from time to time, and all laws, rules and regulations applicable to the performance of its obligations hereunder (including, but not limited to the policies and laws related to intellectual property and proprietary rights, spamming, privacy, obscenity or defamation).
- b) DP Warranties - DP warrants that it has all rights, authorizations or licenses to provide Broadcast Email System to Client.
- c) Disclaimer - USE OF BROADCAST EMAIL SYSTEM AND ANY RELIANCE BY CLIENT UPON BROADCAST EMAIL SYSTEM, INCLUDING ANY ACTION TAKEN BY CLIENT BECAUSE OF SUCH USE OR RELIANCE IS AT CLIENT'S SOLE RISK. DP DOES NOT WARRANT THAT BROADCAST EMAIL SYSTEM WILL BE UNINTERRUDPED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF BROADCAST EMAIL SYSTEM. BROADCAST EMAIL SYSTEM IS PROVIDED "AS IS" AND DP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
- d) Client Remedies - Client's sole and exclusive remedy for any failure or nonperformance of Broadcast Email System shall be for Client to discontinue use of Broadcast Email System.
- e) DP Remedies - Although DP has no obligation to monitor or pre-screen the content provided by Client (including, without limitation, text, links, photographs or other graphics) or Client's use of Broadcast Email System, DP may do so and may remove any such content or prohibit any use of Broadcast Email System it believes may be (or is alleged to be) in violation of Section 4(a) above. DP will advise Client in writing in advance of any such removal.
5. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR LOSS INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DP SHALL IN NO WAY BE LIABLE FOR CLIENTï¿½S LOSS DUE TO RELIANCE UPON, USE OF OR THE INABILITY TO USE BROADCAST EMAIL SYSTEM, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES, OR LOSS RESULTING FROM ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE USE OF BROADCAST EMAIL SYSTEM OR RESULTING FROM UNAUTHORIZED ACCESS TO, DELETION OR ALTERATION OF CLIENT'S TRANSMISSIONS OR DATA OR FAILURE OF THE SERVICE TO STORE CLIENT'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF DP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DP ASSUMES NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE E-MAIL LISTS. IN NO EVENT SHALL DP'S LIABILITY FOR DAMAGES EXCEED THE AMOUNT PAID BY CLIENT FOR BROADCAST EMAIL SYSTEM FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE WHEN SUCH LIABILITY AROSE.
6. Indemnification. - Client, at its own expense, shall indemnify and hold harmless DP, its subsidiaries, affiliates or assignees, and their partners, directors, officers, employees and agents and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including attorneys fees, arising out of or in connection with (i) Clients breach of any of the terms of this Agreement; or (ii) Client's use of Broadcast Email System.
7. Unsubscribing - Although Broadcast Email System provides in each outbound e-mail message an electronic means for recipients to unsubscribe, in the event a Client's list member makes a request (by telephone or otherwise) to the Client to be removed from the Client's list, Client shall comply with such request within 10 business days.
8. Force Majeure - Neither party will be liable to the other for any Internet or telecommunications failure, computer virus, third party interference or other third party software or hardware that may interrupt or delay access to Broadcast Email System or cause other problems or losses, including the loss of Client content. Neither party will be liable to the other for any delay or failure to fulfill its obligations that results from an act of God, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, earthquake, failure or fluctuation in electrical power or other utility services or any other cause beyond its reasonable control.
- a) Assignment; Successors and Assigns - Client shall not assign this Agreement to any third party without the prior written consent of DP. This Agreement shall be for the benefit of, and be binding upon, each party and its successors and assigns.
- b) Choice of Law - This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Florida. Client hereby submits to the exclusive jurisdiction of the courts located in the State of Florida, both federal and state, and agrees that any legal proceeding arising out of this Agreement shall be conducted in such courts.
- c) Arbitration - Any dispute arising out of this Agreement shall be resolved by arbitration conducted by and under the rules of the American Arbitration Association, Miami, Florida.
- d) Notices - Any payment, notice, demand, request or response to be provided under this Agreement shall be in writing and shall be deemed given if delivered personally, by a nationally recognized overnight courier service, mailed by registered mail, postage prepaid, return receipt requested or by e-mail addressed to the parties at the address set forth in the Client's free trial registration form.
- e) Entire Agreement - This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements.
This Agreement may only be amended by a writing signed by both parties. No waiver of any right, duty or obligation hereunder shall be effective unless in writing signed by the waiving party.
- f) Conflict - In the event of a conflict between the terms and conditions of this Agreement and any other DP agreements or guidelines that apply to Broadcast Email System, this Agreement shall be deemed to govern unless DP agrees otherwise in a signed writing.
- g) Invalidity - If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon DP and Client and shall be enforceable as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
- h) Survival - The following Sections shall survive termination of this Agreement: 1(b), 2(e), 2(f), 3(a), 3(b), 3(d), 4(c), 4(d), 5, 6 and 9.
Digital Pursuit's Broadcast Email System Technology's E-mailer Responsibilities and Guidelines
It is DP's policy to comply with all privacy and anti-SPAM laws and regulations and we expect our clients to do the same. In accordance with such expectation, Client acknowledges and agrees to comply with the following responsibilities and guidelines:
Illegal or Deceptive Acts:
- i. TO SEND E-MAILS ONLY TO RECIPIENTS WHO HAVE SPECIFICALLY REQUESTED TO RECEIVE E-MAIL MESSAGES FROM CLIENT;
- ii. not to upload or input into Broadcast Email System any e-mail names or addresses from recipients who have not specifically requested to receive e-mail from Client;
- iii. to use its Broadcast Email System account only to send e-mails relating to the Client's own business or organization unless otherwise agreed to in writing;
- iv. to abide by all applicable local, state, national and international laws and regulations in its use of Broadcast Email System;
- v. not to use Broadcast Email System to harm minors;
- vi. not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through or in connection with Broadcast Email System;
- vii. not to impersonate any person or entity or falsely state or otherwise misrepresent its identity and/or affiliation;
- viii. not to use Broadcast Email System to transmit any content that Client is prohibited from transmitting by law, contractual obligation or fiduciary relationship, (including without limitation trademark and copyright laws and regulations);
- ix. to comply with all laws regarding the transmission of technical data (including without limitation encryption) exported from the United States;
- x. not to post, promote or transmit through Broadcast Email System any unlawful, harassing, tortuous, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially objectionable, ethnically objectionable, or otherwise objectionable material of any kind or nature;
- xi. not to disseminate or upload content containing sexually explicit materials of any kind;
- xii. not to transmit or post any material that encourages conduct that could constitute a criminal offense, give rise to civil liability, otherwise violate any applicable local, state, national or international law or regulation or violates any intellectual property right of any third party;
- xiii. not to interfere with another's use and enjoyment of Broadcast Email System;
- xiv. to comply with the Children's Online Privacy Protection Act and all applicable regulations, when specifically soliciting information from children under the age of 13;
- xv. not to engage in unsolicited chain letters or post or transmit "junk mail" or "spam".
- i. to exercise best efforts not to upload or distribute in any way files that contain viruses, corrupted files or any other similar software or programs that may damage the operation of another's computer or of Broadcast Email System;
- ii. not to interfere or disrupt networks connected to Broadcast Email System or Broadcast Email System's normal operations;
- iii. not to use any means to artificially increase the number of impressions or click-throughs on any e-mail campaign, including but not limited to actions such as subscribing phony e-mail addresses or sending empty messages;
- iv. not to attempt to obtain unauthorized access to Broadcast Email System or to private lists on Broadcast Email System;
- v. not to take any action that imposes an unreasonable or disproportionately large load on Broadcast Email System's infrastructure;
- vi. not to disclose Client's password to third parties or use Client's password for any unauthorized purpose;
- vii. not to reverse engineer, copy or use any device robot, spider, other automatic device, or manual process to monitor or copy DP's web site or the Broadcast Email System system.
- i. that it shall use Broadcast Email System only for lawful purposes. Client agrees not to transmit, re-transmit or store materials on or through Broadcast Email System that are harmful to the Broadcast Email System software, or in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others.