Terms and ConditionsThis Agreement ("Agreement") contains the complete terms and conditions that apply to your use of GraphiCom’s Online Marketing and Sales Solution or any service components thereof, including without limitation, GraphiCom's Email Marketing Services (the "Services"). As used in this Agreement, "GraphiCom", "we", "us", or "our" refers to GraphiCom, 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.
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 Web site located at www.graphicom.tv/email or any such successor Web site. 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:
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 Web site; (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.
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 GraphiCom Web site. 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 Web site. 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
GraphiCom charges and collects in advance for use of the Service. GraphiCom will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly services, (b) every quarter for quarterly services, (c) each year on the subsequent anniversary of the initial sales order, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current service order, unless GraphiCom has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted or published basis. GraphiCom’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 GraphiCom's income.
Term of the Agreement
The term of this Agreement will begin upon your first use of the Services 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. In the event that you would like to terminate this Agreement, you will need to send such notice of termination to our Customer Care department. Your termination of the Agreement will be effective upon the last day of the month in which we received such notification. Fees pre-paid by you for periods after the effective date of termination will be credited back to your applicable credit card (except to the extent such termination is due to your breach of this Agreement) within forty-five (45) days after such effective date. Such credit shall be equal to the unused portion of the pre-paid fees less the pro-rata portion of any promotional discount provided to you as a condition of your use of the Services. We are not required to refund directly to you any amounts paid hereunder.
We shall have the right to include a 2-line attribution message such as: "Delivered by GraphiCom" 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.
We shall have the right to communicate with you via email, receipt of which by you is considered by GraphiCom essential to our provision of service. You may unsubscribe from such communication at any time.
Disclosure of Information
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 GUARANTEE THAT CONTENT DEVELOPED BY US IN ANY WAY IS 100% CAN-SPAM COMPLIANT, AS THE CURRENT LAW IS INTERPRETIVE. WE STRONGLY ENCOURAGE YOU TO SEEK YOUR OWN OUTSIDE LEGAL COUNSEL IN DETERMINING WHETHER ALL CONTENT IS CAN-SPAM COMPLIANT, WHETHER GRAPHICOM DEVELOPS IT OR NOT. 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 GraphiCom 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.
You agree to indemnify, defend and hold harmless GraphiCom, 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.
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: January 10, 2006.