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MailingSmart.com is a Web-based service that enables
organizations to upload, store and manage customer and member lists, create and
send email campaigns to those lists, and track and archive the results of those
campaigns. MailingSmart.com and its related services are provided to you, the
Customer, by us, MailingSmart.com, a California Corporation, the company that
owns and operates the MailingSmart.com Service. For the purposes of this
Agreement, we will refer to ourselves as "MailingSmart.com" and to you as the
"Customer." Any use of the pronoun "you" in this Agreement refers to you, and
any uses of the pronouns "we" or "us" refer to, well, us. |
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By opening a MailingSmart.com account, and using the MailingSmart.com service,
you agree to abide by the terms set forth in this Agreement. You covenant that
(a) you are at least eighteen (18) years of age, (b) you and your company are
able to sign legally binding contracts, and (c) you are representing yourself
and your company honestly to your email recipients and to us. You also agree to
maintain current information about yourself and your company, and to update
that information as it changes. |
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You, us and ownership |
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Your use of the MailingSmart.com Service confers no title or
ownership. We are granting you temporary, non-exclusive access to
MailingSmart.com services – along with certain entitlements and privileges –
that will endure as long as you (a) continue to provide payment for the
MailingSmart.com Service in a timely manner, and (b) continue to abide by the
terms of this Agreement.
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You agree not to copy, modify, re-package, reverse-engineer,
disassemble, modify or otherwise use MailingSmart.com or its components in ways
not explicitly allowed by this Agreement, without prior written consent from
us. You also agree not to remove any proprietary notices or labels from the
MailingSmart.com service. |
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Following the rules of permission marketing |
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MailingSmart.com is a permission marketing and communication
service, designed to facilitate email communication and interaction between
your organization and people who are interested in receiving email
correspondence from you. Your use of the MailingSmart.com service carries a
necessarily high standard of ethics and strict set of rules in order for both
you and MailingSmart.com to be compliant with the local, state, federal and
international laws - as well as all pertinent guidelines and industry best
practices - pertaining to use of email as a marketing and communication
tool. |
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With that in mind, you agree to send emails through the
MailingSmart.com system only to those recipients who have a clear relationship
with you and/or your organization or who have expressly indicated their desire
to receive emails from you.
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Specifically, to receive emails from you, a recipient must
meet one of the following criteria:
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1. He or she has opted in to receive your emails, using a form
that clearly indicates that by submitting his or her email address he or she
will receive emails from you;
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2. He or she has a clear relationship with you, as (a) a
member who pays dues to belong to your organization, (b) a subscriber who pays
a subscription fee to gain access to your organization's services, or (c) a
customer who has purchased a good or service from you within the past eighteen
(18) months, in the course of which you have obtained that customer's email
address.
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If any recipient, regardless of his or her prior opt-in status
or relationship to you, has indicated a desire not to receive emails from you -
either during or prior to your use of MailingSmart.com - you may not use the
MailingSmart.com service to email that recipient.
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Evidence of permission
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By using the MailingSmart.com service to send emails to a
recipient, you are representing to MailingSmart.com that you have obtained
permission to email that recipient. You must be able to provide evidence as to
the origin of any email address with respect to how it was acquired and how
permission was obtained. You agree to fulfill such requests for evidence by
MailingSmart.com to the best of your ability and in a timely manner, and you
understand that any addresses for which you are unable to provide adequate
information in a timely manner will be disallowed, along with the rest of the
list(s) in which that address resides, should we deem it necessary and
appropriate to disallow the entire list.
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No rented, purchased or harvested addresses allowed
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You may not use MailingSmart.com in conjunction with email
lists or addresses that have been purchased, rented or otherwise obtained from
a third party, or which have been collected using a script or other harvesting
method, or which have been obtained without the email address owner's
knowledge. Sending emails to any address or list obtained using one or more of
these methods will result in the termination of your MailingSmart.com account,
immediately and without notice. We may also restrict access to your account,
immediately and without notice, should we have reason to suspect that email
addresses being added or imported into your MailingSmart.com account fail to
meet the permission criteria set forth in this Agreement.
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Should any mailing sent through your MailingSmart.com account
receive an unreasonable number of complaints from Internet Service Providers or
email watchdog groups (with MailingSmart.com having the right to determine what
qualifies as unreasonable), we reserve the right to suspend or terminate your
account immediately. Furthermore, you will be responsible for paying any fines
incurred by MailingSmart.com as a direct result of one of your mailings, in
cases where clear and direct evidence is presented to MailingSmart.com by the
fining organization.
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Clearly identifying the origin of your email, and its content
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You also agree to ensure that email messages sent through your
MailingSmart.com account are truthful and accurately identify the source of the
message. In all emails, you agree to use subject lines that are in no way false
or misleading as to the identity of the sending organization or the nature of
the content contained in the email. You also agree to include your
organization's physical address in all campaigns, as required by the U.S.
Can-Spam legislation.
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Using our opt out process
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Allowing recipients of your emails to choose to stop receiving
those emails is required by law. In order to ensure strict compliance, we
require that you use the opt-out link and process provided with your email
account and templates. You will in no way attempt to circumvent
MailingSmart.com's opt out process. Furthermore, you understand that some
recipients may choose to ask you to opt them out instead of using the opt-out
link provided. In such cases, you agree to unsubscribe any such recipient
manually, by changing the member's mailing status to "opt out" using the tools
provided inside your MailingSmart.com account, and to make sure any such
subscriber has been opted out prior to your next mailing being sent, and within
ten (10) business days from the opt-out request, in lieu of any mailings being
sent, as required by law.
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Responsibility for account use and content
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You are responsible for everything that happens in your
account, including the email addresses that are added, imported and stored, as
well as the content published, distributed or linked to/from your email
campaigns. You agree to take full responsibility for any and all content
distributed through your MailingSmart.com account, and to abide by all
pertinent copyright laws. Should we find reason to believe you have violated
any laws in the course of your use of the MailingSmart.com service, or plan to
violate any law using the MailingSmart.com service, we may suspend or cancel
your account immediately and without warning.
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Protecting your data and your privacy
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We agree to hold your account information, lists and data in
strict confidence. We do not now, nor will we ever, rent, sell or in any way
share your email addresses with any third party. The only time MailingSmart.com
will ever share ANY information related to your MailingSmart.com account with
an outside organization is if (a) the outside organization is processing your
payment for the MailingSmart.com service and requires certain information
necessary for the transaction, (b) the outside organization is the federal
government or other agency empowered to require us to divulge your personal or
account information, (c) MailingSmart.com is highlighting examples of your
templates, campaigns or case studies and have obtained your permission prior to
the divulging of such information, or (d) MailingSmart.com is reporting on our
overall customer base and activity, in which case we will only divulge general,
aggregate (non-personally identifiable) information.
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In creating your MailingSmart.com account, you will create a
username and a password that controls access to your account and all of the
data stored within that account. MailingSmart.com stores an encrypted version
of your password for added security, but you understand and acknowledge that
you are ultimately responsible for maintaining control of that username and
password and ensuring its proper use by authorized personnel only.
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Things you may not do
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The following list outlines many things, in addition to those
already mentioned in this Agreement, which you may not do while using the
MailingSmart.com service. Doing any one of these things may result in the
suspension or termination of your MailingSmart.com account, immediately and
without warning.
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By using the MailingSmart.com Service, you explicitly agree
not to:
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use the MailingSmart.com service to break any local, state,
Federal or international laws or regulations, including but not limited to
those related to spamming, e-commerce, obscenity, defamation or privacy; |
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use the MailingSmart.com service to encourage or facilitate
any illegal activities;
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use the MailingSmart.com service to harass, threaten or
embarrass any person or organization;
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use the MailingSmart.com service to promote MLM (multi-level
marketing) or Ponzi schemes;
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use the MailingSmart.com service to distribute illegal,
pornographic or potentially harmful or offensive information, photos, software
or materials, or include links to Web pages containing any such items (We
reserve the right to use our own judgment in determining what is offensive); or
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use the MailingSmart.com service in conjunction with email
addresses or lists that have been obtained in any way other than those outlined
as permissible in this Agreement.
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Your data, and our storage thereof
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Your MailingSmart.com account includes certain data storage –
for lists, email campaigns and content, and response tracking information. We
may choose to set limits on how much information may be stored, and may change
those limits at any time. Should we impose any such limits, we will provide you
with reasonable advance notice of such limits, and, when possible, offer you
the option to either obtain more storage at an additional cost or maintain a
lower level of storage without incurring additional costs. MailingSmart.com is
not responsible for the loss of any data in the event that you fail to request
either more storage space or a transfer of existing data to another location
and data is lost due to a change in limits or by your exceeding the existing
limits.
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Payment for services
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Like most commercial services, MailingSmart.com asks that you,
the Customer, pay us, the Company, for your use of the MailingSmart.com service
in a timely manner. Unless otherwise agreed upon in writing, setup and/or
licensing fees are due when your account is opened and prior to any emails
(other than 'test' emails) being sent, and monthly activity and design fees are
invoiced monthly and due no more than 15 days from the invoice date. By
providing credit card and billing information into the MailingSmart.com system,
you are authorizing us to charge that card for services rendered and according
to the pricing specified in your MailingSmart.com plan or a separate addendum
to this Agreement, should such an addendum exist. All credit card transactions
are handled through a secure HTTPS connection with a trusted third-party credit
card processor. Lastly, like most commercial services, MailingSmart.com
reserves the right to suspend your account in the event you fail to pay the
appropriate account fees on time, until such time as proper payment is
received.
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Right to inspect
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For the purposes of providing you service and support, and to
ensure that the terms of this Agreement are being followed, we reserve the
right to inspect and monitor your account and data at any time, without notice,
and to limit access to your account at any time should we have reason to
believe that you have already, or may at some point in the future, violate any
terms set forth in this Agreement. |
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Termination
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Unless otherwise agreed upon in writing, your use of
MailingSmart.com requires no long-term contracts and therefore may be
terminated at the end of any monthly billing cycle. Any request to terminate
will take effect at the end of that month, and you will be responsible for
payment for any services rendered up through the termination date. If you have
paid in advance for a certain period of time for the MailingSmart.com service
or any portion thereof and terminates prior to the completion of that period,
that payment is non-refundable.
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We may terminate this Agreement if: a) payment for services
rendered becomes at least 60 days overdue, or b) we determine that you are in
breach of any of the terms set forth in this Agreement.
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Should we be forced to terminate your account, we will work
with you to help retrieve email addresses and other appropriate data from your
account within a reasonable period of time and prior to any final termination
or deletion of your account data. We make no guarantees as to the availability
of your data for more than 30 days following the date of termination by either
party.
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You may request that we keep your account - and account data -
intact, if there is a chance you will someday use it again. In such event, you
understand and acknowledge that account reactivation may require a reactivation
fee or other charges.
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Modifications to this Agreement
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We may, from time to time, edit, append or otherwise modify
the terms of this Agreement. Any changes will take effect as soon as they are
posted on the MailingSmart.com website under “Terms Of Use”. Your continued use
of MailingSmart.com after such changes have been posted indicates your
acceptance of those changes and agreement to abide by them. If you disagree
with any changes made to this Agreement, you may terminate your
MailingSmart.com account as set forth in the 'termination' section above. |
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Warranties and disclaimers
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MailingSmart.com and its related services are provided "as
is," and we expressly disclaim all warranties or conditions of any kind
(express, implied or statutory), including without limitation the implied
warranties of title, non-infringement, merchantability and fitness for a
particular purpose. We will not be liable for any lost profits or special,
incidental or consequential damages arising out of or in connection with
MailingSmart.com or this Agreement.
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In short, we can not and do not guarantee that
MailingSmart.com will work in any particular way, nor can we guarantee that it
will provide you with any particular result, like making you more money,
increasing your customer base, improving your tennis skills, etc. You agree not
to hold us liable, financially or otherwise, should MailingSmart.com fail to
perform these things that we cannot guarantee in the first place. In no event
shall we be liable to you for any amount greater than the fees you have paid to
us for your use of the MailingSmart.com service over the previous twelve (12)
months.
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To reiterate: You, the Customer, agree to indemnify and
hold harmless MailingSmart.com,Inc., its officers, employees and business
partners, from any claims arising from your use of MailingSmart.com or its
related services.
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Headers
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The headers in this Agreement are provided as visual aids only
and are not to be considered legally binding in any way.
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Miscellaneous
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This Agreement says everything there is to be said about the
relationship between MailingSmart.com and you and your use of the
MailingSmart.com website and service and, therefore, it supersedes any other
agreement about those topics. You cannot transfer any of your rights or
responsibilities under this Agreement. We can transfer any of our rights and
responsibilities under this Agreement.
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This Agreement will be interpreted in accordance with the laws
of the State of California. Should MailingSmart.com and you ever have to go to
court over this Agreement or anything related to your use of the
MailingSmart.com service, you agree to submit to the jurisdiction of the
Federal and state courts in San Luis Obispo County, California. Before going to
court, all parties agree to attempt to sort out any problem through arbitration
in San Luis Obispo, California, in accordance with the regulations of the
American Arbitration Association. If any provision of this Agreement is held to
be invalid, that provision will be enforced to the extent possible and all
other provisions of this agreement will be given full effect. If we fail to act
to enforce any of the provisions of this agreement, that inaction will not be a
waiver of our right to act and will not affect our ability to act later.
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We may send you any notice that is required by this Agreement
or otherwise via email or regular mail or by posting the notice on the
MailingSmart.com website. Any notice you send us should be sent to
Lauren@MailingSmart.com or mailed to Lauren Lekai, MailingSmart.com, 612 12th
Street, Paso Robles, California 93446.
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