ALL IN ONE MARKETING AND MASS COMMUNICATION SOFTWARE
This Agreement [hereinafter referred to as “Agreement”] contains the terms and conditions that apply to your use of the Target Points Inc. ALL IN ONE MARKETING AND MASS COMMUNICATION SOFTWARE internet marketing and software package [hereinafter referred to as “Services”]. As used in this Agreement the terms “Provider”, “we”, “us”, or “our” refers to Media Group Incorporated (a lawfully licensed reseller of the ASP application Target Points Inc. ALL IN ONE MARKETING AND MASS COMMUNICATION SOFTWARE), and the terms “Client”, “you” or “your” refers to the person and/or entity who creates one or more email mailing lists [hereinafter referred to as the “Lists”] and corresponding accounts using the Services, and performs the administrative functions of the Lists. The Services are offered to you conditioned on your acceptance without modification of this Agreement and our Acceptable Use Policy. Your use of the Services constitutes your acceptance to this Agreement and our Acceptable Use Policy
CLIENT’S CORE REPRESENTATIONS & WARRANTIES:
You represent and warrant the following:
- You have the full power, authority and right to enter into this Agreement and affirm that you are at least 18 years of age;
- the execution, delivery and performance of this Agreement, by you, will not violate any applicable law, statute or governmental regulation; and
- You acknowledge and agree that you are responsible for the security of the data, software and/or applications you receive from us. Your responsibility also includes the security of the data, software and/or applications provided to any third party email service providers that you employ and/or use.
- You acknowledge that you have read and agree to be bound by this entire Agreement and our entire Acceptable Use Policy [hereinafter referred to as “AUP”].
COSTS; TERM OF AGREEMENT & TERMINATION; PAYMENT; DEFAULT OR BREACH:
Costs of Services:
• You agree to pay us a set monthly fee for the right to broadcast up to a specific maximum number of emails per month using the Services. The maximum number of emails you are allowed to send and the monthly cost for the Services was disclosed to you on the pricing page of our website and then selected by you when you registered for the Services. Your monthly fee will be automatically charged to your account and paid by you, in advance, until this Agreement is terminated and your account is canceled, regardless of List or account activity and/or use of the Services. You understand that an electronic record of your signup, including your acknowledgement of having read and agreed to be bound by this Agreement, was generated at the time of your signup.
• If you exceed the maximum number of email messages you are allowed per month, you agree to pay us an additional $0.04 USD for each email sent above the maximum number allowed. (E.g., if your maximum number of emails is 1,000,000 and you broadcast 1,000,500, you will pay us an additional $20.00 USD for the 500 additional emails.)
• In addition to the monthly fee for the Services, you also agree to pay us a one time initial set up fee of $100.00 USD. (E.g., if your monthly use fee is $200.00 USD, your first payment to us will be $300.00 USD.)
• If you need us to design a message for you or you need us to convert your message to an HTML format, then you agree to pay us $150.00 USD for each such message. This charge will be paid by you, when you use this service. If you do not use this service, then you will not be charged for it.
• You hereby agree to pay us and authorize us to charge your credit card or debit your bank account in advance for the Services, including all fees, costs and/or charges provided for in this Agreement, when incurred.
Term of and Termination of this Agreement: The term of this Agreement will begin upon your first use of the Services and will end when terminated by either you or us as described herein. We may terminate this Agreement at any time, with or without cause, and with or without notice. In the event that you would like to terminate this Agreement, you agree to send such notice of termination via email to email@example.com. Your termination of the Agreement will be effective upon the last day of the month in which we receive such notification. You agree that if you choose to terminate this Agreement prior to the expiration of the full term, you will not be entitled to any refund for the unused portion of the term.
Payment, Financial Agreement, Refund Policy, Credit Card Chargebacks, Payment Reversals, Payment Dishonors & Theft of Services: You acknowledge and agree that all financial information you have given and/or will give to us (e.g., credit card, electronic debit information, etc.) is true and lawfully yours to use and that we are reasonably relying on your representations in entering into this Agreement and providing you our products and/or services. You agree that all payments are due in advance of any marketing campaign or the setup of a hosting account and that we maintain a “NO REFUND POLICY” for any marketing campaigns, once the account has been set up and approved for mass market, by us, and/or once a hosting account has been setup and approved for use. You acknowledge and agree that we perform a substantial and significant portion of the work required of us to be performed, prior to the actual broadcast, and that you are not entitled to a refund if you elect not to proceed with a broadcast. In addition, once a hosting account is set up, you agree that there will be no refund. In the event that you chargeback, reverse or dishonor any payment to us, or incur any additional charges, as provided for in this Agreement, or otherwise take or fail to take any action which results in the theft of services and/or products from us, then you will pay interest at the rate of 9% per annum, or at the highest legal rate (whichever rate is lower), on the full amount due, until the total amount of said payment or cost is paid in full. All email marketing software and hosting accounts will be charged on the first day of sign up and subsequently for each individual month for the full term of the contract. You understand that we will prosecute to the full extent of the law for any fraudulent financial information given to us.
Default or Breach by Client; Fees & Costs: If you default on or fail to pay any amount due when due or otherwise breach any of the terms, conditions, covenants and/or warranties contained in this Agreement, you agree to compensate us for any and all damages arising thereof, including but not limited to actual damages (direct and/or indirect), consequential damages, incidental damages and economic losses. Furthermore, you agree to pay us all reasonable fees, expenses and/or costs (including attorney’s fees, in-house counsel costs, court costs, expenses and other costs) incurred in attempting to collect payment from you or in enforcing this Agreement against you, to the extent not prohibited by applicable law.
ADDITIONAL TERMS AND CONDITIONS:
Assignment: You shall not sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of us. Notwithstanding the foregoing, without securing such prior consent, either party shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest of such party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning party of more than seventy-five percent (75%) of the outstanding stock of the assigning party. Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns. However, you understand and agree that we may transfer the rights to collect any and all amounts due under this Agreement in our sole discretion, with or without any prior notice.
Dedicated Servers; Hosting Accounts; Software and Technical Support: We work very hard to provide our clients with a stable hosting environment for their websites for the duration of any email marketing campaigns. You acknowledge and agree that any hosting account provided to you is provided on an “as is” basis and that you are aware of the technical layout of the hosting environment. We reserve the right to take down and/or remove from our network any website and/or clients, including you, that threaten the stability of our network or other hosted clients on a server, due to illegal, immoral or unethical marketing practices or unapproved content, in our sole discretion. You agree that all content in a hosted website or email campaign must be approved prior to uploading onto our servers. We reserve the right to cancel any website account without notice and/or without a refund. We lease and/or rent the use of our servers for email marketing purposes. You acknowledge and agree that the use of a dedicated email server requires a certain technical knowledge of servers and their environment. We may provide set up assistance at no charge, however, you understand that any technical support beyond set up is billed at the hourly rate of $100.00 US per hour, in quarter of an hour increments.
Disclosure of Information: Provider and Client [hereinafter referred to jointly as “the parties” or individually as “party”] shall not disclose personally identifiable information, private communications (i.e., content transmitted on private, non-public lists) of the other party, to third parties, without that party’s permission, unless it believe such disclosure is reasonably necessary to: (1) comply with the law or legal process; (2) protect or defend its rights or property or that of others; (3) enforce this Agreement; or (4) respond to claims that the contents of any communications violate the rights of others.
Client understands and agrees that Provider has disclosed or may disclose information that has commercial and other value in Provider’s business and is confidential in nature including, but not limited to, email addresses, cellular telephone numbers, formulas, computer programs, databases, mask works, technical drawings, algorithms, trade secrets, patents, patent applications, technology, circuits, layouts, names and expertise of employees and consultants, know-how, designs, interfaces, materials, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer, supplier and product development plans, forecasts, strategies and information, which to the extent previously, presently, or subsequently disclosed to Client is hereinafter referred to as “Proprietary Information” of Provider.
In consideration of the parties' discussions and any access Client may have to Proprietary Information of the Provider, Client hereby agrees as follows: 1) Client agrees (i) to hold Provider’s Proprietary Information in strict confidence as a fiduciary and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Client employs with respect to its most confidential materials), (ii) not to divulge any such Proprietary Information or any information derived there from to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except for the sole limited business purposes of evaluating the Proprietary Information internally to determine whether to enter into the currently contemplated agreement with the Provider, (iv) not to remove or export from the United States or reexport any such Proprietary Information or any direct product thereof to Afghanistan, The Peoples’ Republic of China or any Group Q, S, W, Y or Z country (as specified in Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations, or a successor thereto) or otherwise except in compliance with and with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce, and (v) not to copy or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any Proprietary Information. Any employee given access to any such Proprietary Information must have a legitimate "need to know" and shall be similarly bound in writing; 2) Without granting any right or license, the Provider agrees that the foregoing clauses (i), (ii), (iii) and (v) shall not apply with respect to any information that the Client can document (i) is (through no improper action or inaction by the Client or any affiliate, agent, consultant or employee) generally known to the public, or (ii) was rightfully in its possession or rightfully known by it prior to receipt from the Provider, or (iii) was rightfully disclosed to it by a third party without restriction. The Client may make disclosures required by court order provided the Client uses its best efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Provider to participate in the proceeding; and 3) Immediately upon a request by the Provider at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party's address herein), the Client will turn over to the Provider all Proprietary Information of the Provider and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. The Client understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Provider, which shall be disclosed if at all solely at the option of the Provider, or (ii) requires the Provider to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.
Email Marketing Campaigns: You acknowledge and agree that there are no guarantees of success for any email marketing campaigns. Like any form of traditional advertisement, email marketing has its successes and failures due to marketing conditions and other factors. You agree that we shall not be liable for any unsuccessful email marketing campaigns. Furthermore, you agree that we do not guarantee any email marketing success or any results thereof. Additionally, in regard to any data you may have obtained from us, you agree and understand that because we rely on the truthfulness of the persons providing the information contained in our database(s) and/or list(s) of recipients, we cannot guarantee that all of the information is 100% accurate and can only guarantee that the information was reported to us as accurate at the time it was collected. However, we do promise that any inaccuracies in our database(s) and/or list(s) of recipients will be corrected or deleted when discovered. All of your marketing campaigns must be in full compliance with all state and federal laws.
Email Marketing Communication: You agree that we have the right to communicate with you via email, receipt of which by you is considered essential to our provision of the Services. You may unsubscribe from such communication at any time.
Force Majeure: Neither party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to your payment obligations to us) as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition(s) to the other party.
Limitations on the Use of Products, Software and/or Services: You agree that you will not use our products or services to transmit, disseminate or upload any: (1) unlawful, harassing, libelous, tortuous, abusive, threatening, or obscene communications of any kind; (2) materials that infringe or violate any third party's copyright, trademark, trade secret, privacy or other proprietary or property right; (3) materials that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation; (4) objectionable materials, including but not limited to, content that contains blatant bigotry, racism, or hatred or that promotes illegal activities or physical harm against anyone; (5) spam, chain letters, junk mail or any other type of unsolicited mass email to people or entities who have not agreed to be part of such mailings; (6) any viruses or other harmful, disruptive or destructive files; and (7) in violation of our AUP. Furthermore, you agree that you will not disseminate, to people under age 18 or to anyone on lists that are not limited to people age 18 or older, any content containing nudity or pornographic material of any kind.
List Management: We shall arrange for the maintenance of an opt-out option for your campaigns. You understand and agree that all opt-out requests from recipients of your email messages will and must be honored, and additional advertisements to these emails, pursuant to the United States CAN-SPAM Act, shall not be sent. You agree that you will pay us $300.00 USD for each and every email you send: (1) in violation of the CAN-SPAM Act; (2) to an address on our and/or your block list; (3) to an address that has previously opted-out from receiving emails from you; (4) in violation of our AUP; (5) in violation of any laws, statutes or regulations which may apply to the broadcast message; and/or (6) otherwise in violation of this Agreement.
Proprietary Rights: As provided above (i.e., in the subsection labeled “Disclosure of Information”), we will not seek to sell, trade, rent, lend or disseminate email addresses that you supply us with, for any purpose. However, it is understood that if some of the addresses you supply to us are in our database(s), List(s) of recipients, or that we otherwise have or own, we have proprietary rights to such address(es). Additionally, if you fail to delete any information from your account prior to or at the time your account is terminated, you understand that information will become the property of Provider.
Reports: A username and password for online reporting will be emailed to you approximately 24 hours after the first campaign is started. Once logged on, you will have access to the reporting of your campaigns. The reporting will allow you to see how many times your email message was viewed, how many times a link in your email message was clicked on (i.e., the number of “click throughs”), and how many people chose to opt out of your campaign and/or future messages from you. Every campaign will be added to your secure site where results can be measured.
Right to Refuse: We reserve the right to refuse any or all services based on our company policy of respectable marketing practices, at anytime. You understand we hold strict rules and regulations for our email marketing and hosting services. We may not broadcast emails that contain illegal sexual content, illegal pirated software, hate material, discriminatory material, or that are in violation of any known federal, state or international law. In addition, we reserve the right to determine what is in the best public interest and may elect not to broadcast any message we find not to be in the best public interest.
NO OTHER REPRESENTATIONS AND WARRANTIES: YOU UNDERSTAND AND AGREE THAT NO ADVICE, INFORMATION OR OPINIONS, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU UNDERSTAND AND AGREE THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF CONDUCT, OR COURSE OF PERFORMANCE. YOU UNDERSTAND AND AGREE THAT ALL PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT WE DO NOT MAKE ANY WARRANTIES THAT OUR PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED OR STORED THROUGH THE USE OF OUR PRODUCTS AND SERVICES IS AT YOUR OWN DISCRETION, YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS. YOU UNDERSTAND AND AGREE THAT THE USE OF ANY OF OUR PRODUCTS AND/OR SERVICES IS AT YOUR SOLE RISK.
WITHOUT LIMITING THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY WARRANTIES REGARDING (A) THE NUMBER OF PERSONS WHO VIEW ANY EMAIL BROADCAST PURSUANT TO THIS AGREEMENT, AND (B) ANY BENEFIT YOU MIGHT OBTAIN FROM HAVING YOUR MESSAGES, PRODUCTS AND/OR SERVICES ADVERTISED PURSUANT TO THIS AGREEMENT.
Waiver: The failure of either you or us to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
Modifications of Terms and Conditions: We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a new agreement on our website located at Target Points Inc. or any such successor Website. You are responsible for regularly reviewing these terms and conditions. Your continued use of the Services after any modification shall constitute your consent to such modification. We do not and will not assume any obligation to notify you of any modification to the Agreement. If any modification is unacceptable to you, your only recourse is to terminate this Agreement and cease using the Services.
Governing Law; Jurisdiction and Venue, Service of Process: This Agreement shall be governed by the laws of the State of Illinois without respect to choice of law rules and the parties hereby consent to the exclusive jurisdiction and venue in the state courts of Kane County, Illinois and/or the federal court for the Northern District of Illinois, for such purpose. Client waives the personal service of any process upon them and agrees that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.
Conflict of Terms: If you have entered into a separate written “INTERNET MARKETING AND SOFTWARE CONTRACT” [hereinafter referred to as “Contract”] for the Services, which incorporates this Agreement, and there exists an express conflict between the terms of said Contract and this Agreement, then in regard to the conflicting terms only, it is the terms set forth in said Contract that shall be binding upon the parties. Provided, however, if the conflicting terms may be construed in a manner in which they both may apply or that the terms and conditions herein may supplement the terms of the Contract, then such a construction shall be used.
Construction; Severability: Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary, allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Furthermore, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
Headings: The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
Survival: Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening, including but not necessarily limited to the subparagraph captioned “Entire Agreement; Acceptance”, below.
Indemnification and Liability: You agree and acknowledge that you shall hold us (including but not limited to all our employees, officers, shareholders, directors, agents, attorneys, vendors, affiliates, subcontractors, its parents, subsidiaries, suppliers or contract employees) harmless from any liability, loss, claims, and/or expenses related to any or all email marketing campaigns or hosting services.
Remedies: Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. You agree that your sole and exclusive remedy for any dissatisfaction with the Services is to discontinue the use of the Services. You agree that in no event shall we ever be liable to you for more than the actual dollar amount you paid to us for the Services.
LIMITATIONS OF LIABILITY: EXCLUDING THE YOUR OBLIGATIONS, SETFORTH ABOVE, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL WE (INCLUDING BUT NOT LIMITED TO OUR EMPLOYEES, OFFICERS, SHAREHOLDERS, DIRECTORS, AGENTS, ATTORNEYS, VENDORS, AFFILIATES, SUBCONTRACTORS, OUR PARENTS, SUBSIDIARIES, SUPPLIERS OR CONTRACT EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR INABILITY TO USE OUR SERVICES AND/OR PRODUCTS OR FOR THE PROCURMENT OF SUBSTITUTE GOODS AND SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH OUR PRODUCTS OR SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR STORED OR NOT STORED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY FAILURE TO DELIVER, HOLD OR STORE EMAIL OR DATA TRANSMITED, STORED OR USED BY OUR PRODUCTS AND/OR SERVICES. WITHOUT LIMITING ANY OF THE FOREGOING, YOU AGREES THAT WE ARE NOT RESPONSIBLE FOR ANY OF YOUR MATERIALS (INCLUDING BUT NOT LIMITED TO YOUR MESSAGES, IMAGES, DATA OR OTHER INFORMATION) RESIDING IN OUR NETWORK HARDWARE OR SYSTEMS. YOU ARE RESPONSIBLE FOR BACKING-UP YOUR OWN MATERIALS, REGARDLESS OF WHETHER SAID MATERIALS ARE PRODUCED THROUGH THE USE OF OUR PRODUCTS AND/OR SERVICES. YOU AGREE THAT IT IS YOUR SOLE AND EXCLUSSIVE RESPONSIBILITY TO TAKE THE NECESSARY STEPS TO ENSURE YOUR MATERIALS AND/OR PRIMARY MEANS OF BUSINESS IS MAINTAINED.
ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE ASSERTED WITHIN ONE (1) YEAR OF THE DATE UPON WHICH SUCH CAUSE OF ACTION ACCRUED, OR WITHIN THREE (3) MONTHS OF THE DATE UPON WHICH THE COMPLAINING PARTY DISCOVERED OR SHOULD HAVE REASONABLY DISCOVERED THE EXISTENCE OF SUCH CAUSE OF ACTION, WHICHEVER IS LATER.
Entire Agreement; Acceptance: This Agreement, along with any documents expressly referenced herein, constitutes the entire and only agreement between the parties and supersedes any and all prior agreements, whether written, oral, express, or implied, of us and you with respect to the transactions set forth herein. Neither party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by such party in any correspondence or other document, unless the party to be bound specifically agrees to such provision(s) in writing. The services and/or products referenced in this Agreement are offered to you conditioned upon the acceptance of this Agreement and your use of the services, software and/or other products constitutes your acceptance of this Agreement.