TERMS OF USE
PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN "YOU or YOUR" (AS DEFINED IN THE SERVICE ORDER LINKED TO THIS AGREEMENT), AND SAFEGUARD BUSINESS SYSTEMS, INC. ("SAFEGUARD").
YOU INITIATED AN ORDER TO USE SAFEGUARD'S SERVICES (THE "SERVICES" ). IN ORDER TO USE THESE SERVICES, YOU MUST FIRST READ THIS AGREEMENT AND INDICATE ITS ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW BY SELECTING THE "I AGREE" BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT CLICK THE "I ACCEPT" BUTTON A, IN WHICH CASE YOU WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT FOR SERVICES AND YOU ARE NOT BEING GRANTED A LICENSE TO ANY SOFTWARE UNDER THIS AGREEMENT.
1. Services.
During the term of this Agreement and subject to the terms and conditions set forth herein and any guidelines, rules or operating policies that SAFEGUARD may establish and post from time to time on www.safeguardwebservices.com (the "Site"), including, without limitation SAFEGUARD's anti-spam policy, privacy policy and prohibited content and commerce statement (collectively, the "Policies"), SAFEGUARD agrees to use commercially reasonable efforts to provide You with the Services. From time to time, SAFEGUARD may modify the terms and conditions of this Agreement and/or the Policies. All such changes shall become effective upon posting of the revised Agreement and/or Policies, as the case may be, on the Site, and Your use of the Services thereafter shall be subject thereto. You agree that Your purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by SAFEGUARD with respect to future functionality or features.
2. Free Trial Offers.
During a Free Trial Offer period of either 30 or 60 day subscription to any Web Service on a “Free Trial Offer”, you will be permitted to use the service as defined by the Free Trial Offer for that period. Near the end of the Free Trial Offer period, you will be notified by email that the free trial will soon end. Upon the expiry of the Free Trial Offer period we will process a charge to your credit card on file or process a charge on account as the case may be in the amount of the web service plan corresponding to the Free Trial Offer service. This will allow uninterrupted use of the service. If you choose not to continue using the service you must advise us to discontinue the service by contacting us at 1-866-993-0371. By agreeing to accept the Free Trial Offer, You agree to be bound by these Free Trial Offer Terms and Conditions.
3. Purchase.
Pricing for the Services is based upon subscriber levels purchased by You, as indicated by You in the Service Order. If the number of subscribers stored in Your account exceeds the subscriber level purchased, the user’s subscribers will not receive any new email marketing campaigns until the service is upgraded. Your subscriber level may be upgraded (but not downgraded) at any time during the term of this Agreement. The total number of emails that may be sent by You each month using the Service cannot exceed the subscriber level limit. For example, if Your subscriber level limit is 500, You can send up to 500 emails per month. If You require a sending limit higher than their current plan allotment You should contact SAFEGUARD's sales group by calling 1-866-993-0371.
4. Fees and Payment.
In consideration for the Services to be provided by SAFEGUARD, You agree to pay the monthly subscription fees set forth in the Service Order (the "Subscription Fees"). Paid Subscription Fees are non-refundable. You acknowledge that from time to time, delivery of email messages sent using the Services may be blocked or prevented at destination email servers. Your payment obligation set forth herein continues regardless of whether delivery of such email messages is prevented or blocked by a third party. Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice, or may be pre-paid in advance. The Fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement. Any payment not received by SAFEGUARD from You by the due date will be subject to suspension of service within 10 days. In the event You fail to make timely payments when due, SAFEGUARD may, at its election, discontinue, terminate or suspend the Services and delete all Customer Data (as defined below) from its systems, in each case, without incurring any liability to You. Despite any such discontinuation or suspension, You acknowledge and agree that You will be required to pay the Subscription Fees for the remainder of the term of this Agreement. From time to time, and at any time, SAFEGUARD may require from You reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
5. Customer Data.
SAFEGUARD will not own any data, information or material that You submit to SAFEGUARD in the course of its provision of the Services (the "Customer Data"). You will be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and intellectual property ownership thereof. Further, You will be solely responsible for maintaining, securing and storing all Customer Data. SAFEGUARD will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
6. Proprietary Rights.
This is an agreement for services and You are not granted any license hereunder. All software embedded in the Services (the "Software"), and the Services, are and shall remain the sole and exclusive property of SAFEGUARD. Accordingly, You acknowledge that SAFEGUARD owns or has rights through third parties to all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, You will not have or acquire any rights or interest in or to the Software or the Services. You acknowledge that the Software contains proprietary information and trade secrets of SAFEGUARD. You will not take any actions inconsistent with SAFEGUARD's ownership of each of SAFEGUARD's rights in and to the Software. You agree that You will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by SAFEGUARD.
7. Use of Services.
You acknowledge and agree that You will use the Services only to access, employ, utilize, or display the Software solely for Your "internal business purposes" by Your employees or by independent contractors hired by You. For the avoidance of doubt, the term "internal business purposes," as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased (email) lists, distribution lists, newsgroups, or spam email addresses; or (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You agree to report immediately to SAFEGUARD, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section.
8. No Tampering.
Each email message that is sent using the Services must contain an "unsubscribe" link that allows visitors to remove themselves from Your mailing list. You agree that You will not remove, disable or attempt to remove or disable the link.
9. Confidential Information.
Each of SAFEGUARD and You, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). In the event that the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice of such pending disclosure. For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same hereunder, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information; (iv) can be proven by competent evidence to have been independently developed by the Receiving Party; (v) is furnished by the Disclosing Party to a third party without restriction on the third party's right of disclosure; (vi) is approved in writing for release by the Disclosing Party; or (vii) is required to be disclosed by order of court or law.
10. Use of Certain Information.
In the course of using the Services, You may provide to SAFEGUARD certain information, including, but not limited to, contact and technical information (the "Information"). SAFEGUARD will not provide any Information to any third party without Your authorization and will use reasonable efforts to prohibit any third party that receives any such Information from selling or redistributing such Information without Your authorization.
11. Representations, Warranties, and Covenants.
You represent, warrant and covenant to SAFEGUARD that: (i) if an individual, You are at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
12. Disclaimer of Warranties.
THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAFEGUARD AND ITS AFFILIATES, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
13. Limitation of Liability.
IN NO EVENT WILL SAFEGUARD OR ANY REPRESENTATIVE BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF SAFEGUARD OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL ANY REPRESENTATIVE'S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES YOU PAID TO SAFEGUARD FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or SAFEGUARD non-provision, of the Services (or the Professional Services), Your sole and exclusive remedy shall be for SAFEGUARD to use commercially reasonable efforts to repair or provide the Services.
14. Indemnification.
Indemnification. You agree to indemnify, defend and hold harmless SAFEGUARD, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys' fees) arising from Your negligence or intentional misconduct, Your violation of this Agreement or the Policies, Your violation of law in your use of the Services, Your breach of any of its representation, warranties or covenants set forth herein, or Your infringement of any intellectual property rights or other rights of any person or entity.
15. Termination.
Either party may terminate this Agreement at any time by providing the non-terminating party with thirty (30) days' prior written notice of such party's intent to terminate. If You desire to terminate this Agreement, You should notify SAFEGUARD by calling 1-888-390-1244. YOUR ACCOUNT WILL CONTINUE TO BE BILLED AUTOMATICALLY UNTIL YOU NOTIFY SAFEGUARD IN THE MANNER DESCRIBED IN THIS SECTION 15 OF YOUR INTENTION TO TERMINATE THIS AGREEMENT. Any default in the performance of any of Your obligations hereunder, shall be considered a material breach of this Agreement and shall entitle SAFEGUARD to terminate immediately this Agreement, to terminate SAFEGUARD's provision of the Services and to pursue all available equitable and legal remedies. You acknowledge and agree that after the thirtieth (30th) day following termination, SAFEGUARD has no obligation to retain the Customer Data and may delete and destroy such Customer Data without providing You with notice of such deletion.
16. Relationship.
This Agreement does not create a partnership, joint venture or agency relationship between SAFEGUARD and You. You do not have any right, power, or authority to act as a legal representative of SAFEGUARD.
17. Assignment.
You may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of SAFEGUARD. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
18. Severability.
In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
19. Survival.
The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
20. Entire Agreement.
This Agreement, constitutes the entire agreement and understanding between SAFEGUARD and You and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the SAFEGUARD and You, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.
21. No Waivers.
SAFEGUARD's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
22. Notice.
SAFEGUARD may provide You with general notice by electronic mail to Your e-mail address of record, or by written communication sent by first class mail or pre-paid post to Your address of record.
23. Export Restrictions.
You acknowledge that the Services may be subject to U.S. or other countries' export control laws and regulations. You agree not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
24. Miscellaneous.
Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by SAFEGUARD and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.
BY CLICKING ON THE "I AGREE" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THE PROVISIONS OF THE AGREEMENT AND THAT YOU AGREE TO BE BOUND TO AND BY THE TERMS AND CONDITIONS OF THE AGREEMENT."