TargetTheMarket.info® WEB SITE AND PRODUCTS TERMS AND CONDITIONS OF USE
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE PRODUCTS.
Last revised December May 2012
TABLE OF CONTENTS:
General Terms and Conditions
Communication with You
Copyright and Trademark Information
Fees and Payment; Fee Schedule;
Use of the Products
Restrictions and Responsibilities
Warranty Disclaimer; Remedies; Release
Limitation of Liability
Restricted Persons; Export of Products or Technical Data
Third-Party Websites and Services
Notice and Take Down Procedures;
Open Positions on Career Pages
Username and Password
International Use; Prohibited by Law
TargetTheMarket.info, Inc. ("TargetTheMarket.info," "we" or "us") provides small businesses and organizations with a variety of products, including:
TargetTheMarket.info Email Marketing (the "Email Marketing Product");
TargetTheMarket.info Article Publishing (the "Article Publishing Product");
TargetTheMarket.info Comment Sessions (the "Blog Comment Product").
In addition to the products described above, we provide a variety of related offerings and services, including, without limitation, email campaign archiving (Email Campaign Archive), premium document and image hosting services, social media messaging aggregation and accessibility services and professional services. The Email Marketing Product, the Article Publishing Product, the Blog Comment Product, Email Campaign Archive, professional services and any related offerings and services are referred to in these Terms and Conditions of Use as the "Products."
We reserve the right to modify, revise, suspend or discontinue any Product in whole or in part, either temporarily or permanently, with or without notice, and you acknowledge that we are not obligated to support or update the Products in any manner. If we discontinue any Product, we will provide you with advance notice and an opportunity to cancel your account.
2. General Terms and Conditions.
2.1. General. This website and our Products are provided subject to these Terms and Conditions of Use, as they may be amended by us, and any guidelines, rules or operating policies that we may post on this website, including, without limitation, our Anti-Spam Policy and our Privacy Statement, which are specifically incorporated herein by reference (collectively, the "Agreement"). We may amend this Agreement from time to time due to changes to our Products, to account for developments under the law, or for any other commercially reasonable reason. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our website) and, if you do not want to agree to any such amendment, you should contact us to cancel your account. By checking the box next to the "Do you agree?" button on the sign-up page, by logging in to your TargetTheMarket.info account, by accessing this website or by accessing any of our Products by means of any API interface, you accept this Agreement.
Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form you provide are specifically null and void.
2.2. Minimum Age and Ability to Bind. This website and the Products are available only to persons or organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, this website and the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use this website or the Products. If you are using this website or the Products on behalf of an organization, you represent and warrant that you have the ability to bind such organization by your use of this website and the Products.
2.3. Registration. You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on this website, and agree to update such information if it changes.
3. Communication with You. We reserve the right to send messages to you to inform you of:
changes or additions to this website or the Products;
changes to this Agreement or any of the Fee Schedules (defined below),
violations of this Agreement or cancellation, suspension, termination or other action respecting your privilege to access and use this website or the Products; or
any other matter related to this website, the Products or this Agreement.
Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement.
4. Copyright and Trademark Information.
Copyright © 1996-2011 TargetTheMarket.info, Inc.
This website and the information they contain, are the property of TargetTheMarket.info and its affiliates and licensors, and are protected by United States and international intellectual property laws. "TargetTheMarket.info," the TargetTheMarket.info logo, "Safe Subscribe," "SafeUnsubscribe" and "NutshellMail" are registered trademarks or trademarks of TargetTheMarket.info in the United States and other countries. This is not intended as a complete list of our trademarks and other TargetTheMarket.info product or service names or logos appearing in this website may be trademarks of TargetTheMarket.info or its affiliates.
5. Fees and Payment; Fee Schedule; Free Trial.
5.1. Fees for the Email Marketing Product. You will be subject to monthly subscription fees in accordance with the Email Marketing Fee Schedule (the "Email Marketing Product Fee Schedule"). The fees are based on the number of subscribers or contacts in your TargetTheMarket.info account at any time during the previous month. For purposes of this Agreement, each unique email address will count as one subscriber or contact. You will be required to submit payment monthly in advance for the Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Email Marketing Product. Access to the Email Marketing Product may be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Email Marketing Product, even if you are not actively using the Email Marketing Product. The Email Marketing Product may also be subject to per message and certain overage charges.
5.2. Fees for Related Offerings and Professional Services. If selected by you, you will also be billed for related offerings and services, including, without limitation, premium document and image hosting and email archiving services (Email Campaign Archive), in accordance with the Fee Schedules. In addition, you may also purchase professional services to assist you with your TargetTheMarket.info account and your use of our Products.
5.3. Fee Schedules Generally; Discounts. You are responsible for reviewing the applicable Fee Schedules from time to time and remaining aware of the fees charged by us and any applicable discounts. The Fee Schedules, including subscriber or contact levels, survey response levels, published event levels, fan levels, prices and any discounts, are subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your account. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedules. If you receive special discounts through one of our marketing partners, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case our standard rates will apply. We may rely on information provided by the applicable marketing partner, if any, with respect to the status of your TargetTheMarket.info account. Repeated uploading and removing of unique email addresses or otherwise trying to manipulate data in an attempt to circumvent our Fee Schedules or other billing procedures is prohibited. Any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.
5.4. Payment; Taxes. Payment for the Products will be made by a valid credit card accepted by us. Checks will be accepted for prepayments of at least six months. Fees are payable in U.S. dollars only. If the monthly payment option is selected or if you have previously provided us with your credit card for payment, you hereby authorize us to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period and continuing until such time as your TargetTheMarket.info account is terminated. If we are for any reason unable to effect automatic payment by credit card, we will attempt to notify you by email and your TargetTheMarket.info account may be disabled until payment is received. We are required to collect and remit sales tax from our customers located in certain state and local jurisdictions, including those jurisdictions where software delivered as a service is taxable and where we maintain a physical presence. We determine your local taxing jurisdiction based on the billing address that you list in the "My Account" section of your TargetTheMarket.info account. You agree to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this Agreement, use or possession of this website or the Products, excluding taxes based on net income payable by us.
6. Use of the Products.
6.1. General. The Products may not be used for the sending of unsolicited email messages (sometimes called "spam"). All messages sent by means of the Products shall be in compliance with our Anti-Spam Policy. You shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious. You are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the "CAN-SPAM Act")) of any message sent by you using the Products. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent, within the meaning of Canada's Anti-Spam Legislation, S.C. 2010, c. 23 ("Canada's Anti-Spam Legislation").
6.3. Permission Practices. You agree to comply with the following in connection with your use of this website or the Products:
You agree to import, access or otherwise use only contact lists for which all listed parties have consented to receive correspondence from you, in compliance with applicable law, in connection with your use of the Products. You agree not to use any other contact lists in connection with your use of the Products. It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks "Like" on your Facebook page, or "follows" you on Twitter, unrelated to such survey or event or otherwise. For respondents to your surveys or registrants to your events or people or organizations that interact with you through your social media campaigns, consent to receive other correspondence from you is evidenced by the respondent or registrant opting into the "Join My Mailing List" link in the course of responding to your survey, registering for your event or interacting with you by means of your social media campaigns. If you have used our feature that allows you to request a recipient to confirm that you have the recipient's permission to send messages to such recipient, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send messages to that recipient. You acknowledge that the use of this feature may not be permissible under the laws of all jurisdictions, and further acknowledge and agree that you have sole legal control, responsibility and liability for compliance with any such laws.
You agree that you shall not utilize the Products to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a "commercial electronic mail message" as defined in the CAN-SPAM Act or Canada's Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.
You cannot send messages through the Products to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.
Messages that you send through the Products may generate spam or other complaints from recipients. As a matter of privacy, we cannot share with you information about those recipients who complain about your messages, surveys, events or campaigns. You are responsible for ensuring that your messages, surveys, events or campaigns do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Products if we determine that your level of spam or other complaints are higher than industry norms, as determined by us in our sole discretion (such determination shall be final, binding and conclusive for all purposes under this Agreement).
6.4. Prohibited Content. We prohibit the use of this website or the Products by any person or organization that:
Displays or markets material that exploits children under 18 years of age;
Posts or discloses any personally identifying information or private information about anyone without his or her consent, including children under 18 years of age without their parents' consent;
Provides or posts any material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or that is obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
Engages in any libelous, defamatory, scandalous, threatening, or harassing activity;
Provides or posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or that provides instruction, information or assistance in causing or carrying out such violence;
Introduces viruses, worms, Trojan horses, spyware or other harmful code;
Posts or displays any content, including any image, that infringes, misappropriates or otherwise violates the intellectual property rights of others, including authors, artists, or photographers;
Sells or promotes any products or services that are unlawful in the location at which the content is posted or received;
Provides, sells or offers to sell any of the following products or content (or services related to the same):
Pornography or illicitly pornographic sexual products, including but not limited to adult magazines, video and software, escort services, dating services, or adult "swinger" promotions; provided, however, the foregoing prohibition shall not apply to established retail home-based party businesses;
Illegal drugs and contraband that are unlawful in the location at which the content is posted or received;
Illegal goods, pirated software or media; or
Instructions on how to assemble or otherwise make bombs, grenades or other weapons;
Provides, sells or offers products, services or content frequently associated with spam, such as:
Online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, prescription and counterfeit drugs;
Debt collections, credit repair and debt relief offerings;
Promotion of stocks or stock message boards;
Work-at-home offers promoting "get rich quick," "build your wealth" and "financial independence;"
Pyramid schemes or multi-level channel, network and/or referral marketing (MLM) businesses used for prospecting or recruiting;
DJ/nightclub, event/club promotions/party lists; or
Odds making and betting/gambling services, including but not limited online poker, casino games, college and pro sporting events; or
Markets to third party voter registration lists or party lists obtained in which the specific candidate did not collect explicit consent. In the event that you engage in any of the activities listed above, in our sole discretion, we reserve the right to terminate your access to or use of the Products, disable your TargetTheMarket.info account or access to the Products, and remove all or a portion of your content, in each case at any time, with or without notice and without refund. We may also report your activity to the applicable legal authorities as required by law or in our discretion.
6.5. Use of the Products by You. You agree to comply with the following in connection with your use of this website and the Products:
You shall not interfere with or disrupt this website or any related TargetTheMarket.info websites or servers or networks connected to this website or any Products.
You shall not restrict or inhibit any other user from enjoying and using this website or the Products.
You shall not use the Products in violation of applicable law or third party rights (including third party terms of service), and shall not use the Products for hosting content (for example, images and documents) that infringes on the intellectual property rights of others.
You will not set up multiple accounts for any individual or organization in order to send substantially similar content unless you are part of a franchise.
You agree that the "from" line of any email message sent by you using the Products will accurately and in a non-deceptive manner identify your organization, your product or your service.
You agree that the "subject" line of any email message sent by you using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
You agree to include in any email message sent by you using the Products your valid physical address, which, if you are located in the U.S., may be a valid post office box meeting the registration requirements established by the United States Postal Service.
In your use of the Products, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.
You shall not copy any of our templates or any other features or functionality from the Products or use them for any purpose other than through your use of the Products themselves. This restriction also applies to customized templates prepared by our professional services group.
You may not use documents and images hosted by us on servers controlled by us for any purpose whatsoever other than in connection with the Products.
You agree that in any message sent by you using the Email Marketing Product, the Survey Product or the Event Marketing Product, you will not include any incentives (for example, coupons, discounts or awards) that encourage a recipient to forward the message to another recipient.
In connection with your use of our "Text to Join" feature, you will use such feature in compliance with applicable law and any obligations you may have to third parties.
6.6. Limitations on Use. You acknowledge the following in connection with your use of this website and the Products:
You understand that not all messages or campaigns sent through use of the Products will be received by or will be capable of being viewed by their intended recipients.
To the extent permitted by applicable law, we may make and preserve copies of any and all messages, events, surveys and social campaigns as necessary to provide the Products and for internal back-up and other legal or regulatory purposes.
You understand that delivery of messages via the Products may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You further understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.
You agree that we may establish general practices and limits concerning use of the Products, including without limitation the maximum number of messages or social campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may transmitted via the Products.
We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or social campaigns from entering, utilizing or remaining within our network. Nothing in this policy is intended to grant any right to transmit or send messages or social campaigns to, or through, our network except as may be otherwise stated in this Agreement.
You will not import or incorporate into any contact lists, messages, surveys, event registrations, social campaigns or uploads to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind.
For the purposes of European Directive 95/46/EC and applicable national implementing laws in your jurisdiction, and with respect to your customer's personal data, you acknowledge and agree that you are the data controller, and we are a data processor. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law. We agree that we shall process your customer's personal data on your behalf in accordance with your instructions, as set out in these Terms and Conditions of Use, the Privacy Statement and in order to provide the Products, and any instructions received from time to time, and that we have taken and will continue to take adequate technical and organizational measures against unauthorized or unlawful processing of, accidental loss or destruction of, or damage to, your customer's personal data as set out in our Privacy Statement.
6.8. Interactions with Subscribers.
If you use the Products to communicate about or administer any contest, competition, sweepstakes, or other similar promotional event ("Promotion"), you are responsible for the lawful operation of that Promotion, including the official rules, offer terms and eligibility requirements (for example, age and residency restrictions), the selection of winners and compliance with regulations governing the Promotion and all prizes offered in connection with the Promotion (for example, registration and obtaining necessary regulatory approvals). You shall bear all costs of procuring or delivering any prizes, including any associated insurance, taxes and any other fees associated with such prizes. You also agree to comply with any rules or guidelines required by any applicable third party website provider to administer or communicate about any Promotion. You shall ensure that the rules for each Promotion (i) state that each entrant or participant unconditionally releases us of any liability arising from the Promotion, and (ii) inform each entrant or participant that the Promotion is in no way sponsored, endorsed or administered by, or associated with, us.
You will refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of the Products.
We merely facilitate any events you may host, Promotions you may offer and the sale of products or services you may sell or provide. We provide no safeguards to ensure that your events, Promotions, products, services or related sales and marketing materials comply with applicable law or that they do not infringe any third party right.
As the host of any event or the provider of any Promotion or your services or products, you are fully responsible for any and all statements and promises made to your subscribers or users and any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect thereto.
6.9. Payment Collection. If you use the Products to collect payments, including registration for events, donations or products or services, you are responsible for the collection and administration of such payments and compliance with all applicable laws relating thereto, including all applicable domestic or international local, state or federal tax requirements. You are responsible for any refunds associated with any payments. You may elect to process payments through any payment processing service (a "Payment Processing Service") that we make available for your use (for example, PayPal®, Google Checkout™), but your use of such service is subject to such Payment Processing Service's applicable terms and conditions of use. We do not hold your funds or those of your subscribers, customers, event registrants or donors at any time.
6.10. Footers. For every message sent via the Products, survey, event or social campaign launched or distributed via the Products, you agree that we may add a link to our website and a statement such as "Email Marketing by TargetTheMarket.info" or "Powered by TargetTheMarket.info" in the footer or other similar location that does not unreasonably obscure the message, survey, event or social campaign.
6.11. Remote Access. You may from time to time provide our personnel or agents with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by us or our personnel or agents.
7. Communities and Marketplace
7.1. General. This website may contain areas where you may be able to publicly post information or communicate with others (for example, discussion boards or blogs), review products and merchants and otherwise submit content, including the TargetTheMarket.info Community and the TargetTheMarket.info Marketplace. You agree that you are responsible for your own use of such communities, for any posts you make and for any consequences thereof. You agree that we are not responsible for the content of any postings in any such community and have no duty to monitor such communities or to correct any erroneous statements set forth therein. Any information you post may be accessible to anyone with Internet access, and any personal or other information you include in your posting may be read, collected and used by others. You agree that you will use any such community areas in compliance with all applicable laws, including any laws regarding the transmission of technical data exported from your country of residence and all United States export control laws and this Agreement. We reserve the right, but shall have no obligation, to investigate your use of any community for any reason, including in order to (i) determine whether a violation of this Agreement has occurred or (ii) comply with any applicable law, legal process or governmental request. We have no obligation to maintain or continue operation of any community, including the TargetTheMarket.info Community or the TargetTheMarket.info Marketplace, and we may cease operation of, or modify, all or any portion of any such community at any time in our sole discretion.
7.2. TargetTheMarket.info Community. With respect to your use of the TargetTheMarket.info Community, you agree to abide by the TargetTheMarket.info Community Terms and Conditions of Use. In the event that you violate any provision of the TargetTheMarket.info Community Terms and Conditions of Use, in our sole discretion, we reserve the right to terminate your access to or use of the Products, disable your TargetTheMarket.info account or access to the Products, and remove all or a portion of your content, in each case, with or without cause, with or without notice and without refund.
7.3. TargetTheMarket.info Marketplace. With respect to your use of the TargetTheMarket.info Marketplace, you agree to abide by the TargetTheMarket.info Marketplace Terms and Conditions of Use. In the event that you violate any provision of the TargetTheMarket.info Marketplace Terms and Conditions of Use, in our sole discretion, we reserve the right to terminate your access to or use of the Products, disable your TargetTheMarket.info account or access to the Products, and remove all or a portion of your content, in each case, with or without cause, with or without notice and without refund. Many of the products and services being promoted by means of the TargetTheMarket.info Marketplace are offered by and are the sole responsibility of the person or entity that made such postings. We do not endorse any products or services referred to in the TargetTheMarket.info Marketplace, and we are not responsible for (i) any third party products or services marketed or made available through the TargetTheMarket.info Marketplace, or (ii) any purchase or other transaction resulting from or associated with your use of the TargetTheMarket.info Marketplace.
9. Restrictions and Responsibilities
9.1. No Rights in Software. This is an Agreement for services and access to this website, 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 Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software; modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that we perform such work at our standard professional services rates. We can then decide either: (i) to perform the work in order to achieve such interoperability and charge our then standard rates for such work to you; (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
9.2. Permitted Use of the Products. The Products shall be used for your personal or internal business (which includes civic or charitable) purposes only, in compliance with this Agreement (including, without limitation, Section 6 hereof) and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by us in connection with the Products.
9.4. Your Information.
In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to us. We may use this information and any technical information about your use of the Products in accordance with our Privacy Statement and relevant "just-in-time" notices, if any, provided at the point of information collection or use. We may provide your information, including your contact and account information, to courts, law enforcement authorities and/or other relevant third parties, when such disclosure is necessary or advisable, at our sole discretion, to conduct an investigation, respond to a third party or law enforcement subpoena or court order, bring legal action or pursue other relief when you or a third party are or may be: (i) violating our terms and conditions of use; (ii) causing injury or other harm to, or otherwise violating our property or other legal rights, or those of other users or third parties; or (iii) violating federal, state, local, or other applicable law.
We will also obtain any information that you provide to us in connection with the use of the Products (such as contact lists, content and phone numbers for your subscribers who take advantage of our Text-to-Join feature). We acknowledge your ownership rights in such contact lists, content and phone numbers. We will never sell or rent your contact lists, content or phone numbers to anyone without your permission, and will never use your contact lists, content or phone numbers for internal marketing or promotional purposes or for any purpose other than providing our products and services. In the event we amend or revise the policy described in the immediately preceding sentence, we will provide advance notice of such amendment or revision.
You consent to us collecting data from your website through automated means, such as through harvesting bots, robots, spiders, or scrapers ("Automated Data Collection") and the use of that data for internal business purposes. We will not use Automated Data Collection to collect data from your website if you have set the /robots.txt file to disallow such collection.
9.5. Intellectual Property Matters.
You agree that you will not submit, upload or transmit any contact lists, information or content of any type to this website or in connection with the Products or by email to us that infringe, misappropriate or violate any of our rights, any rights of any third party or applicable law. If you submit any suggestions, business information, ideas, concepts or inventions or content to us through this website, in connection with a Product or by email ("Submissions"), you agree such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.
The license granted in the paragraph immediately above shall not apply to your contact lists and the content you deliver to or through the Products ("Customer Information") and you hereby separately grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display the Customer Information only as required by us to offer and operate the Products and related services, including available offerings from third parties. You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Information, and you are responsible for maintaining, securing and storing all Customer Information in accordance with applicable law and any contractual obligations you may have (including pursuant to this Agreement). To the extent you use images or templates provided by us, we hereby grant to you a revocable, non-exclusive, royalty-free, worldwide license to use, reproduce, publish, distribute, perform and display the images in an unaltered state solely in connection with your use of the Products.
You may terminate your TargetTheMarket.info account at any time by calling TargetTheMarket.info Customer Support. There are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR TargetTheMarket.info ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR TargetTheMarket.info ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR TargetTheMarket.info ACCOUNT AND THIS AGREEMENT.
We may, in our sole discretion, terminate your TargetTheMarket.info account or your access to or use of the Products, disable your TargetTheMarket.info account or access to the Products, remove all or a portion of your content, or put your TargetTheMarket.info account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. Unless you or we terminate your account, you will continue to be responsible for paying any amounts owed to us hereunder.
We have the right to delete any of your data immediately following termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Upon request, we will provide the list of unsubscribe requests from your TargetTheMarket.info account to you. Under the CAN-SPAM Act and Canada's Anti-Spam Legislation, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your TargetTheMarket.info account and this Agreement.
If your TargetTheMarket.info account is classified (at our sole discretion) as inactive for over 120 days, we have the right to permanently delete any of your data, including any data relating to your subscribers.
Upon termination of your TargetTheMarket.info account by you or us, this Agreement and any rights or licenses granted to you hereunder, shall immediately terminate except that all sections of this Agreement that by their nature should survive termination will survive termination.
11. Indemnification. You hereby agree to defend, indemnify and hold harmless us and our business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents from and against any damages, losses, liabilities, penalties, settlements and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any actual or alleged breach by you of this Agreement; (ii) arises from the content or effects of any messages you distribute, events you host, surveys you administer, social media campaigns you publish, Promotions you offer, or products or services you sell (including, without limitation, claims relating to defective products or services or unclaimed property); (iii) arises from your activities or postings in any community (including the TargetTheMarket.info Community and the TargetTheMarket.info Marketplace); (iv) arises from your use of any Third Party Service (as defined below); (v) arises from your activities related to the TargetTheMarket.info Expert Program or the TargetTheMarket.info Boot Camp; or (vi) otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that we have the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Products, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.
12. Warranty Disclaimer; Remedies; Release.
YOU EXPRESSLY AGREE THAT THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE PRODUCTS IN COMPLIANCE WITH THE LICENSE AND/OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES (INCLUDING YOUR EMAIL AND/OR SOCIAL NETWORKING PROVIDERS), AND WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF THE SAME.
WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (i) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, (ii) ANY CONTENT PROVIDED BY ANY THIRD PARTY OR (iii) ANY EVENT HOSTED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE PRODUCTS OR OBTAINED FROM A THIRD PARTY.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE PRODUCTS SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE PRODUCTS.
TO THE EXTENT THE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILTY RELATED TO ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING OUR PRODUCTS AND FROM ANY CLAIMS RELATED TO THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
13. Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF TargetTheMarket.info, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL TargetTheMarket.info OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "TargetTheMarket.info") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF TargetTheMarket.info SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF TargetTheMarket.info TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY TargetTheMarket.info TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that TargetTheMarket.info has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
14. Restricted Persons; Export of Products or Technical Data.
You hereby represent and warrant that you are not a Restricted Person. For purposes of this Agreement, you are a "Restricted Person" if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (i) a national of or an entity existing under the laws of any country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (ii) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (iii) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (iv) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (v) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify us within 24 hours, and we shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you; provided, however, for the avoidance of doubt, you will remain liable to us for any outstanding obligations hereunder. You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, 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.
15. Third-Party Websites and Services.
You agree to abide by the terms and conditions of any applicable Third Party Service. Notwithstanding anything set forth herein to the contrary, you will abide by this Agreement regardless of anything to the contrary in your agreement with any third party and you shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.
We may terminate any Third Party Service's ability to interact with any of the Products at any time, with or without notice, and in our sole discretion, with no liability to you or to the third party. Any Third Party Service may take actions to impact our ability to make available some or all of the features of the Products at any time, with or without notice, and we will not be liable to you or to the third party for any such actions. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Third Party Services.
In no event shall any reference to any third party or third party product or Third Party Service be construed as an approval or endorsement by us of that third party or of any product or service provided by such third party.
16. Monitoring Communications. You agree that we may, in our sole discretion, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or capable of being retrieved.
17. Notice and Take Down Procedures; Copyright Agent.
If you believe any materials accessible on or from this website or the Products infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from this website or the Products by contacting our copyright agent (identified below) and providing the following information:
Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (for example, the URL) of an authorized version of the work.
Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
Any information required to be included in a copyright infringement report under the United Kingdom Digital Economy Act 2010 (as we shall notify to you from time to time and request from you as necessary).
Your name, address, telephone number and (if available) email address.
A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
A signature or the electronic equivalent from the copyright holder or authorized representative.
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of TargetTheMarket.info account holders who are repeat infringers.
18. Open Positions on Career Pages. We may list open employment positions on this website. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this website or made available through this website as an offer for employment, nor should you construe anything on this website as a promotion or solicitation for employment not authorized by the laws and regulations of your location.
19. Username and Password. You are responsible for maintaining the security of your TargetTheMarket.info account, passwords and files. We will accept the instructions of any individual who claims to be authorized to direct changes to your TargetTheMarket.info account so long as such person presents your username and password or provides other appropriate account identifying information, as determined by us in our sole discretion, by email or by phone, or through a Third Party Service, if any, through which you access the Products. We have no knowledge of your organizational structure, if you are registering for the Products as an organization, or your personal relationships, if you are a person. You will be solely responsible and liable for any activity that occurs under your username and we shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorized use of your TargetTheMarket.info account or any other breach of security.
20. Forward-Looking Statements. You acknowledge that this website contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 regarding us. These forward-looking statements regarding us are made as of the date they were first issued and were based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions of our management. Words such as "expect," "anticipate," "should," "believe," "hope," "target," "project," "goals," "estimate," "potential," "predict," "may," "will," "might," "could," "intend," variations of these terms or the negative of these terms and similar expressions are intended to identify these forward-looking statements. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond our control. Our actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including those risk factors contained in documents that may be filed by us from time to time with the Securities and Exchange Commission, including but not limited to our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Past performance is not necessarily indicative of future results. We undertake no intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
21. International Use; Prohibited by Law. In recognition of the global nature of the Internet, you agree to comply with all local rules where you reside or your organization is located regarding online activities, email and the Products. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Products are controlled and operated by us from our offices within the United States and we make no representation that the Products are appropriate or available for use in other locations. Those who access the Products from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Products where prohibited by law.
22.1. Full Force and Effect. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
22.2. Entire Agreement. We and you agree that 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 this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
22.3. Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
22.4. Further Assurances. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
22.5. Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
22.6. Titles. The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.
22.7. No Agency. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
22.8. Attorney Fees. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
22.9. Governing Law and Legal Actions. The Agreement shall be governed by the laws of the Commonwealth of Massachusetts, 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 Boston, Massachusetts.
22.10. Additional Information. If you have any questions about the rights and restrictions above, or would like to report any inaccuracies or errors, please contact us by email at [email protected]
23. UK Site Visitors and Customers. If you are accessing this website and / or purchasing any Products from the UK, Sections 11, 12 and 13 of this Agreement will not apply to you as set out above, but will be replaced in their entirety with the following wording:
"11. Indemnification. You hereby agree to defend, indemnify and hold harmless us and our business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents from and against any damages, losses, liabilities, penalties, settlements and expenses (including without limitation costs and reasonable legal fees) in connection with any claim or action that (i) arises from a breach by you of any of the following Sections of this Agreement: 2, 5, 6-9, 15, 19 or 21; (ii) arises from a breach by you of the Anti-Spam Policy or Privacy Statement or of your obligations as a data controller under applicable law; (iii) arises from the content or effects of any messages you distribute, events you host, surveys you administer, social media campaigns you publish, Promotions you offer, or products or services you sell; (iv) arises from your activities or postings in the TargetTheMarket.info Community or the TargetTheMarket.info Marketplace in breach of the terms of this Agreement; or (v) arises from your use of any Third Party Service (as defined below), in breach of the terms of this Agreement or the terms of any agreement in place with the relevant Third Party Service; (vi) arises from your activities related to the TargetTheMarket.info Expert Program or the TargetTheMarket.info Boot Camp in breach of the terms of this Agreement.
12. Warranty Disclaimer; Remedies; Release.
You expressly agree that the products are provided on an "as is" and "as available" basis. Use of the Products and any reliance by you upon the Products, including any action taken by you because of such use or reliance, is at your sole risk. We do not warrant that the use of any Product will be uninterrupted or error free, nor do we make any warranty as to the results that may be obtained from use of the same. To the extent permitted by applicable law, we expressly exclude all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity. No statement or information, whether oral or written, obtained from us in any means or fashion shall create any warranty not expressly and explicitly set forth in this agreement.
You are solely responsible for your use of the Products in compliance with the license and/or terms and conditions of any third parties or Third Party Services (including your e-mail and/or social networking providers), and we shall have no liability of any nature whatsoever for your compliance with or breach of the same.
We do not endorse and are not responsible for (a) the accuracy or reliability of any opinion, advice or statement made by anyone other than us, (b) any content provided by any third party or (c) any event hosted, the results of any survey, or any product or service purchased or otherwise obtained from any third party, including our customers. It is your responsibility to evaluate the accuracy, completeness or usefulness of any opinion, advice or other content available through the Products or obtained from a third party.
To the extent applicable law permits, you release us from any claims or liability related to any content posted on your site or in any materials you send using the Products and from any claims related to the conduct of any other customers of ours or their respective subscribers.
13. Limitation of Liability.
Except with respect to fraudulent misrepresentation, death or personal injury due to the negligence of TargetTheMarket.info, or liability that may not otherwise be limited or excluded by law, to the maximum extent permitted by applicable law, under no circumstances and under no legal theory, tort (including negligence), contract, breach of statutory duty or otherwise, shall TargetTheMarket.info or any of its underlying service providers, business partners, information providers, account providers, licensors, officers, directors, employees, distributors or agents (collectively referred to for purposes of this section as "TargetTheMarket.info") be liable to you or any other person for any loss of profits, revenue, business, goodwill or anticipated savings, or for any indirect or consequential losses, even if foreseeable or if TargetTheMarket.info shall have been informed of the possibility of such damages, or for any claim by any other party, other than where caused by TargetTheMarket.info's material breach of this agreement, and regardless of the form of the action (whether in contract, tort (including negligence), breach of statutory duty, product liability or otherwise), the maximum aggregate liability of TargetTheMarket.info to you arising in connection with this agreement shall be limited to the amount you paid for the applicable Product in the 12 months prior to the accrual of the applicable claim, less any damages previously paid by TargetTheMarket.info to you in that 12 month period.
You agree that TargetTheMarket.info has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties."
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