1. SIMPLESEND END USER LICENSE AGREEMENT
The terms and conditions in this agreement (the "Agreement") will govern your (the "User") access to SimpleSend, Inc. (doing business as "SimpleSend") Services and your use of the data you obtain by use of the Services. SimpleSend grants to the User a non-exclusive right during the term of this Agreement to use the Services pursuant to the terms and conditions set out herein. Your use of the Services confers no title or ownership in the Services. All ownership rights remain in SimpleSend, Inc. or its third party suppliers, as the case may be.
2. SERVICES TO BE RENDERED AND DELIVERY OF SERVICES
SimpleSend offers its services on an "as is" basis. Through the "Services", SimpleSend provides marketing tools, information, information management and storage and support. Users can create and send email campaigns using the tools to distribute content supplied by the User to email addresses also supplied by the User. The User acknowledges that SimpleSend does not create any content and that SimpleSend is not the author or the publisher of any campaign. The User further acknowledges that SimpleSend does not rent or sell email lists. SimpleSend reserves the right, but is not obligated to, review and approve any content posted or sent by Users. SimpleSend disclaims all copyright and other rights in such content and all responsibility for them. SimpleSend retains the right to cancel and delete any campaign violating its Usage Rules as defined by SimpleSend set forth in Section 7. SimpleSend reserves the right to amend or update these rules at any time without notice to the User by posting the latest SimpleSend End User License agreement to its website.
As part of the Services, SimpleSend may notify User, at the email address provided to SimpleSend during User registration or as updated at any future time by the User, when the User campaign has been sent. SimpleSend will use reasonable efforts to ensure posting of the User campaign at the scheduled time. However, SimpleSend reserves the right to alter the time and date of delivery of the campaign and the delivery of the results without prior notification to the User of such a change. SimpleSend also reserves the right to limit the number of emails that can be sent, per campaign, at any time.
The Services are available to individuals who are eighteen (18) years of age or older as well as corporations and other organizations who can form legally binding contracts under applicable law. If a User does not qualify, do not attempt to use the Services. You will provide true, accurate, and current information about yourself as requested by the sign up, registration or billing process. SimpleSend may refuse to offer the Services to any person, corporation or organization and may change the criteria for eligibility, at any time, in its sole discretion. SimpleSend retains the right to terminate your account and your rights to use the Services if there are reasonable grounds to believe that any data you provide is or becomes untrue, inaccurate, not current or incomplete, or if you are in breach of the Usage Rules.
4. ACCOUNT PASSWORD AND SECURITY
The User is responsible for maintaining confidentiality of its user name and password. Furthermore, the User is entirely responsible for any and all activities that occur under its user name and password. The User is to immediately notify SimpleSend of any unauthorized use of the account or any breach of security.
5. MODIFICATIONS TO THE SERVICES
SimpleSend reserves the right to modify or discontinue the Services, temporarily or permanently, with or without notice to the User and SimpleSend is not obligated to support or update the Services. SimpleSend will not be liable to the User or any third party in the event that SimpleSend exercises its rights to modify or discontinue the Services.
6. MODIFICATION OF TERMS AND CONDITIONS
SimpleSend may, at any time and at its sole discretion, modify the terms and conditions of this Agreement. Any such modifications will be made available online and will be effective immediately upon posting to SimpleSend's website. User agrees to assume responsibility for periodically reviewing this Agreement. By continuing to use the service, following the initial posting date of modifications made by SimpleSend, User agrees to be bound by the Agreement as amended. User may terminate this agreement in accordance with Section 12.
7. USAGE RULES
The User represents, warrants, covenants that use of the Services will only be in compliance with this Agreement and all applicable laws.
With regard to email campaigns, the User specifically agrees not to use the Services:
a. To send email to any party who has not given their permission to receive email from the User. User also acknowledges that it is unlawful to send emails to addresses that were harvested (e.g. obtained from an automated scan of a web site) knowingly or unknowingly, and agrees to never send emails to such addresses, and accept liabilities for misuse. User agrees to abide by SimpleSend's Anti-Spam policy at http://www.SimpleSend.com/spam.html. SimpleSend reserves the right to update and/or amend this policy from time to time without notice to the User by posting the Anti-Spam policy to its web site. Furthermore, the User understands the repercussions of the contravention of this policy, including but not limited to termination of their account without refund of any monies paid.
b. For any unlawful purposes.
c. To harass, threaten, embarrass or cause distress, unwanted attention or discomfort to a person or entity.
d. To send content or links that contain nudity or sex pornography material of any kind to individuals under age 18, or to anyone on lists that are not limited to people age 18 or older.
e. To send, submit or publish any defamatory, inaccurate, abusive, obscene, profane, or threatening material which is racially or ethnically offensive or which infringes upon the right of any third party, as determined by SimpleSend.
f. To send content that contains links to web pages that contain nudity, sex, pornography, tasteless images, foul language, hate propaganda, anything illegal, illegal software, serial numbers for unlocking software, mail fraud, pyramid schemes or is otherwise insulting to another person(s).
g. To encourage the use of any controlled substance, transmission of material, information or software in violation of any local, state or federal law.
h. To impersonate any person, including but not limited to, an official of SimpleSend or an information provider, or communicate under a false name or a name that the User is not entitled or authorized to use.
i. To upload, post or reproduce in any manner any material protected by copyright without the permission of the copyright owner.
j. To send content that promotes or provides instructional information about illegal activities, or promoting physical harm or injury against any group or individual.
The User agrees not to directly or indirectly reverse engineer, decompile, disassemble, or otherwise attempt to discover source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services of any software, documentation, or data related to the Services. The User also agrees not to remove any proprietary notices or labels from the Services or any software, modify, translate, or create derivative works based on the Services or any software, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any software. The Services shall not be used to create campaigns to be sent by other email service providers.
The User agrees not to remove
or export from the
In the event that the User violates one of the above usage rules, or for any other reason deemed appropriate by SimpleSend, SimpleSend reserves the right to suspend or terminate, with or without notice, access to the User's account and all related data. SimpleSend also reserves the right to modify the Users data with email notice provided to the User within one business day except in the case of Spam complaints by ISPs or email recipients, in which case, the name of the complainant/email recipient will be immediately unsubscribed from the User's List/s without notice to the User. In addition, if SimpleSend gets any complaints from the User's use of the Services, being complaints from email recipients, ISPs, domain name providers, or other complaints, SimpleSend reserves the right to share the User's name and the fact that there have been complaints, with any third party, including other providers of email marketing services.
8. USE AND STORAGE
SimpleSend may store User information, content, contact lists, emails, campaign activity statistics, reports and other information in its databases for the User. SimpleSend reserves the right to establish general practices and limits concerning the use of the Services, including without limitation the maximum number of days that information is stored, the maximum amount of disk space that will be allotted to each User, the maximum size of campaigns sent through SimpleSend's Services, the scheduled time of a campaign and the maximum number of occasions that the User may access the Services in a given period of time. SimpleSend has no responsibility or liability for the deletion or failure to store any messages, content or other information maintained or transmitted through the Services. At any time SimpleSend may determine that User information can no longer be stored by SimpleSend or deem User information to be inappropriate and remove it from its databases with or without notice to the User.
If the User does not log into its account for more than 90 days, if the User does not pay for the services, if a User account is terminated for breach of this EULA, or if the User fails to remedy any breach as notified by SimpleSend, the account will become inactive. When an account is inactive, at SimpleSend's sole discretion, SimpleSend may notify the User by email. Inactive accounts have 30 days to become active after notification or the account and its data may be permanently removed from the SimpleSend databases.
The User is responsible for ensuring good data management practices within their SimpleSend account and to delete old Campaigns and/or Lists that are no longer required. If requested by SimpleSend to delete Campaigns and/or Lists, the user will take this action within five (5) business days of such request or SimpleSend may take the requested action in that User's account itself.
Any information stored on the SimpleSend servers may be deleted at any time by SimpleSend.
9. OWNERSHIP OF PROPRIETARY INFORMATION
The User acknowledges and agrees that the Services and SimpleSend logos and trade names are the property of SimpleSend or its affiliates or suppliers. User also acknowledges that SimpleSend owns and/or has all requisite rights in and to any software necessary to provide the Services under this Agreement.
All other marks that appear throughout the Services are the property of their respective owners. The User fully understands and acknowledges that they are not granted any right or license whatsoever to use any of the marks and logos owned by SimpleSend or of any such other entity, and that all such uses of any of the marks appearing throughout the Services is strictly prohibited without prior written consent of SimpleSend.
The User understands that the SimpleSend Services and its website also contain or may contain copyrighted or other proprietary materials of SimpleSend, its sponsors, advertisers or other third parties. The User understands and acknowledges that, except as strictly necessary for personal viewing and use of the Services or the SimpleSend website by means of a standard Internet browser (such as Microsoft Internet Explorer and Netscape Navigator), the User is not granted any right or license to use, link to, reproduce, reverse engineer, modify, duplicate, distribute, display or perform any such copyrighted materials used or displayed on this Website or to permit others to do the same, and that all such uses are prohibited without the prior written consent of SimpleSend.
10. DISCLAIMER OF WARRANTIES
At SimpleSend's request, the User agrees to defend, indemnify and to hold harmless SimpleSend, its officers, directors and employees from any claims arising from the User's use of SimpleSend Services or the User's breach of the Terms of service, including, without limitation, claims of copyright infringement, patent infringement, misappropriation of trade secrets, libel, slander, trade libel, defamation, harassment, invasion of privacy or fraud.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE INFORMATION ARE PROVIDED BY SIMPLESEND ON AN "AS IS" BASIS, AND SIMPLESEND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, OMISSIONS, COMPLETENESS, TIMELINESS OR DELAYS WITH RESPECT TO THE SERVICE, INFORMATION OR PRODUCTS.
IN NO EVENT WILL SIMPLESEND BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICES, INFORMATION OR PRODUCTS PROVIDED ON THE WEBSITE. IN PARTICULAR, SIMPLESEND WILL NOT BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE USE OF SIMPLESEND's SERVICES, ITS WEBSITE OR THE INFORMATION OR DATA CONTAINED THEREIN, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE.
SIMPLESEND, ITS AFFILIATES ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO THE SERVICE, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT OR TORT, WILL BE LIMITED TO THE AGGREGATE AMOUNT OF CHARGES FOR SERVICES PAID BY THE USER TO SIMPLESEND WITH RESPECT TO ANY SERVICES DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM(S).
11. CHARGES FOR SERVICES
The Services are charged according to the pricing plan selected and agreed upon by the User. All prices are in US dollars.
Users are charged a monthly fee for access to the Services, data storage, support and sending up to the specified maximum number of subscribers per month as defined in the plans. The charges will continue on a monthly basis unless the User notifies SimpleSend in writing that they wish to terminate the Service or downgrade the account to a lower plan. The User may upgrade their plan at any time by notifying SimpleSend Customer service. The monthly fee is due in advance upon commencement of the subscription (the "Monthly Anniversary Date") and monthly in advance thereafter, on the month's "Monthly Anniversary Date". On each Monthly Anniversary Date, Users are charged the monthly fee. The User may cancel this account at any time. Payment for Services will be made by credit cards accepted by SimpleSend. User hereby authorizes SimpleSend to charge the User's credit card for services on a regular once-per-month basis until terminated by a notice in writing. In The event that Charges for any fees are denied by the credit card then User acknowledges that the fees will be paid via check, wire transfer or by other credit card.
In the event of a change during the month that results in a "downgrade" ie the User selects a plan that decreases the number of emails available to the User, the plan change will be effective at the Users' next monthly anniversary date. Volume Plans may be downgraded at any time. In the event that the User fails to pay for Services, in accordance with the User plan, SimpleSend reserves the right to suspend or terminate, with notice as set forth in Section 12, access to the User's account and all related data and remove all the User data permanently form their servers.
This Agreement may be terminated by SimpleSend at any time by notifying the User by email. The User may cancel their account at any time by notifying SimpleSend in writing. The User must notify SimpleSend a minimum of three (3) days prior to the anniversary date for any downgrade or cancellation of an account.
If, as a result of the User violating the Usage Rules, the User's account is terminated by SimpleSend, the following will apply:
(a) No refund of any monies prepaid for the current month or be given
(b) If the User has pre-paid for more than one month in advance, a refund of the pre-paid funds less current month and preceding month’s fees will be returned to User.
The termination of the Agreement by either party will not affect the User's obligation to pay the charges incurred for services consumed and any fees due and payable, under the termination clause of this contract. All terms of this Agreement which by their nature survive termination, will survive termination, including without limitation, ownership, warranty disclaimers, indemnification and limitations of liability.
Upon termination by SimpleSend, the User's right to use the Services will terminate immediately. The User acknowledges and agrees that SimpleSend may remove the User's files and information.
13. EFFECT OF TERMINATION
User will pay any outstanding usage fees under any Plans and the Termination Fees due to SimpleSend by credit card immediately upon termination by the User.
User acknowledges that the software, algorithms and other processes used to provide the Services, the content (other than content owned by the user or any third party), Usernames, passwords, look, feel and functionality of the services are the property of SimpleSend or in the case of services being offered by SimpleSend's partners under approved distribution agreements, the property of SimpleSend's partners.
These terms and conditions represent the complete, final and exclusive agreement between SimpleSend and the User, and supersede and merge all prior oral, written or electronically transmitted agreements, representations and understandings between SimpleSend and the User.
Any notices prescribed in this Agreement to be made "in writing" may be delivered by Email, Facsimile or Post.
The laws of the State of California will govern this Agreement. If any of the provisions of this Agreement is determined by a court to be void, invalid, unenforceable or illegal, the enforceability of the other provisions of this Agreement will not be affected.