This agreement sets out the legally binding terms of your use of the service provided by MailMart to you (hereinafter referred to as “End User”, “You” or “Your”), and may be modified by MailMart from time to time, such modifications to be effective upon posting of the modified agreement. By accessing, using and/or registering for the service provided by MailMart (hereinafter referred to as the “Service”), you agree that you have read and understand this End User Terms of Service and all of its contents (hereinafter referred to as this “Agreement“), intend this Agreement to be the legal equivalent of a signed, written contract and equally binding, and that you will be subject to all of the terms and conditions set forth herein. You agree to review the Agreement periodically to be aware of any such modifications, additions, deletions or other changes, and your continued access, registration and/or use of the Service shall be deemed your acceptance of the modified agreement.
1. Description of Service
The monthly renewing service provided by MailMart enables the End User to send electronic messages containing rich media content, including, but not limited to, images, videos, music, sound clips and other audiovisual and/or interactive features. Any new feature, enhancement, addition, change or upgrade to the current Service shall be subject to the terms and conditions set forth in the Agreement herein.
2. Intellectual Property
MailMart solely and exclusively owns all intellectual property and other rights, title and interest in and to the MailMart service and all content and materials provided to you through the Service, including, but not limited to, text, software, music, sound, video, photographs, graphics and animation (hereinafter referred to as the “Content”). All such content provided by MailMart and its licensors through the Service is the sole and exclusive property of MailMart, and any unauthorized use of the content may violate United States federal copyright laws, patent laws, moral rights laws, trade secret laws, confidential information laws, trademark laws, unfair competition laws or other similar rights.
MailMart grants you a limited, nontransferable, nonexclusive, revocable license to access and use the Service and send, compose, read, print, save and forward messages containing the Content as described and limited in this Agreement. You hereby agree to access and use the Service for its intended purposes, subject to your compliance with this Agreement, and are hereby prohibited from utilizing the Service for any other purpose or to alter the Content and/or Service in any way, including, but not limited to, removing or deleting any proprietary rights notices. This license does not include the right to collect or use information contained on the Site or through the Service for purposes prohibited by MailMart, to compete with MailMart, create derivative works based on any and all Content obtained through the Service, or download or copy any Content obtained through the Service (other than page caching). In addition, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, transfer any content, information, documents, graphics or other materials or Content obtained through your use of the Service, in whole or in part, for commercial or non-commercial purposes. License to use the Service is limited to personal use by the End User; therefore, resale or commercial use of the Service or any other means to seek financial gain from providing the Service to any third party, without the express prior written consent of MailMart, is strictly prohibited. By using the Service, you acknowledge and agree that portions of the Content is provided to you by third-party licensors, and you hereby agree to adhere to and comply with any such third-party’s license(s) and to refrain from violating any such licensor’s intellectual property rights. If you use the service in a manner that exceeds the scope of this license or breaches this Agreement, MailMart may revoke the license granted to you.
4. End User Obligations
By accessing, using and/or registering for the Service, you agree to: a) provide true, accurate, complete and current user information as requested by MailMart at any time; b) promptly and regularly update your user information to maintain it’s accuracy and completeness; c) provide for your own access to the Internet and pay any fees or costs relative to such access that is required to access the Service; d) provide all necessary equipment and/or materials necessary for you to make such connection to the Internet in order to access, use and/or register for the Service. By providing any user information that is untrue, inaccurate, incomplete and/or not current, MailMart reserves the right to suspend or terminate your account and refuse any and all current or future use of the Service, in whole or in part, by you. On occasion, we may ask you to sign an affidavit verifying the fact that your list is truly permission based.
5. End User Privacy
6. End User Conduct
By accessing and/or using the Service, you hereby represent and warrant that you will not utilize the Service for any purpose that is unlawful and/or prohibited by the terms and conditions in this Agreement. The Service provided by MailMart makes use of the Internet to compose, send and receive Messages; therefore, each End User’s conduct is subject to Internet law, regulations, policies and procedures. By utilizing the Service, you shall not engage in unlawful or unethical activities through your use of the Service, including, but not limited to: a) unsolicited surveys, contests or pyramid schemes; b) defamation, libel, slander, abuse, harassment, stalking, embarrassment, threatening acts or otherwise violate the legal rights of any third party; c) publish and/or distribute inappropriate, profane, vulgar, defamatory, infringing, obscene, adult-oriented, pornographic, tortuous, indecent, unlawful, immoral or otherwise objectionable material; d) harm minors in any way, form or manner; e) harvest or collect any information about any third party, including, but not limited to, e-mail addresses, without consent of such third party; f) record conversations or communications between or among any other third parties without the consent of such third parties; g) create false identities for the purpose of misleading any third party as to the identity of the sender of any Message or to manipulate the origin of any Message or transmission of same; h) transmit or upload any content or materials that contain viruses, trojan horses, worms, bots or any other harmful or destructive programs; i) transmit or upload any content or materials that contain software or other content that is protected by Intellectual Property Rights, including, but not limited to, copyright, trademark and patent rights, rights of privacy or publicity, or any other applicable law, unless you are the owner of such rights thereto or have received all necessary consents by the respective owners of such rights; j) transmit or upload any content or material that would encourage conduct that could constitute a criminal offense, civil liability or otherwise violate any applicable local, state, federal or international law, regulation or policy; k) interfere with, disrupt or manipulate the Service, its networks or servers, or violate the regulations, policies and procedures of such networks and servers; l) successfully gain or attempt to gain unlawful and/or unauthorized access to the Service and/or accounts, systems and networks connected to the Service by password mining or other unauthorized means; m) violate any applicable laws, policies or regulations, including, but not limited to, laws relative to the transmission of data or software exported from the United States of America through the Service and/or any other applicable local, state, federal and international law and regulation; n) interfere with any individual, entity, or any other third party’s use and enjoyment of the Service; o) use the Service to advertise and/or promote any illegal activities; p) use the Service for illegal purposes; q) use the Service for gambling or betting purposes; r) use the Service to promote the use of alcohol, firearms or tobacco products; s) use the Service to send electronic mail transmissions to any third party that include links to any web site that violates the terms and conditions set forth in this Agreement; or t) engage in any other conduct, activity or behavior that, in MailMart’s sole and exclusive discretion, is considered unauthorized, illegal, immoral or objectionable.
By accessing, using and/or registering for the Service, you shall not use the Service, in whole or in part, in any way, for the purpose of composing and/or sending chain letters, junk electronic mail, “spam”, or any purpose that involves the utilization of distribution lists to any third party business or individual that has not given express specific permission to be included in such a distribution list. Any electronic mail advertisement that is composed and addressed to a third-party recipient with whom the sender does not have an existing business, commercial or personal relationship and which is not sent at the express request or consent of the recipient to receive such a Message from you is strictly prohibited (hereinafter referred to as “Spamming”). The definition of "Spamming" is determined solely by MailMart's internal evaluation system, which involves numerous data points, including such things as your complaint rate, adherence to the CAN SPAM Act
, bounce rate, complaints from ISPs and feedback from blacklisting services and other criteria we may deem appropriate. MailMart reserves the right to immediately terminate any End User’s license to access and/or use the Service if such End User uses the Service, in whole or in part, for Spamming purposes, and MailMart reserves the right to seek appropriate legal action as necessary for any such violation. If you reasonably believe that any other user may be using the Service for Spamming purposes, you hereby agree that you will promptly notify MailMart of any such violation.
MailMart holds no obligation to monitor the Service, your use of the Service or to store the content of any end user session. However, MailMart reserves the right to monitor, review, retain, store or disclose any information or content as necessary, at any time, in conjunction with any applicable law, regulation, policy, legal process and/or government or police request, or to enforce this Agreement herein at the sole discretion of MailMart. You hereby agree that MailMart shall be held harmless from any liability for any such monitoring, lack of monitoring, review, lack of review, retention, lack of retention and/or disclosure of content or information as described herein.
9. End User Accounts and Security
As an End User of the Service, you will receive an end user account and password to access said account. You are solely responsible for maintaining the confidentiality and security of your account and password. You are solely responsible for any and all activity that occurs within your end user account while using the Service, including, but not limited to, the content located in all electronic mail messages sent through the Service from your account. You may modify or change your password at your sole discretion, at any time, by following the instructions located on the MailMart web site. You expressly agree to promptly notify MailMart of any unauthorized use of your account or any other breach of security.
10. Unsolicited Submissions
MailMart will not accept, review or consider any suggestions, ideas, notes, drawings, diagrams, concepts or other information (hereinafter referred to as “Information”) from any End User or other third party, other than those it has specifically and expressly solicited, and MailMart therefore requests that any End User or other third party refrain from sending any such Information to MailMart. If any End User or other third party elects to send any suggestion, idea, note, drawing, diagram, concept or other information, any such Information shall be deemed the property of MailMart. End User hereby assigns and transfers all Intellectual Property Rights in and to the Information to MailMart, and End User further agrees to reasonably and promptly effectuate the assignment described herein by executing all applicable instruments and documents now or hereafter requested by MailMart which are necessary to effectuate the assignment, as well as perform any other reasonable act deemed necessary by MailMart to fully transfer ownership of the Information to MailMart to the fullest extent possible. During any such transfer of ownership of Information from End User to MailMart, MailMart is not responsible or liable to provide compensation to End User in any way, form or manner for the transfer or assignment of Intellectual Property Rights in and to the Information, nor is MailMart subject to any confidentiality policies on behalf of the End User regarding the Information and, therefore, shall not be liable or owe any compensation to End User for any use and/or disclosure of the Information.
11. User-Submitted Content
You, as End User, have the sole and exclusive responsibility for any content, data, text, software, music clips, sound, video, photographs, graphics, messages, files or other material that is transmitted, posted or otherwise distributed by you through the Service (hereinafter referred to as “End User Content”), including, but not limited to, the contents of your electronic mail communications, photographs posted by you on the MailMart Site or through the Service. As such, you assume sole liability for all End User Materials posted by you, whether publicly or privately posted and/or transmitted. MailMart is not responsible and holds no liability relative to monitoring the End User Content provided through the Service, and does not warrant, guarantee or represent, in any way, the accuracy, quality and/or integrity of the End User Materials. By utilizing the Service, you acknowledge that you may be exposed to content or other materials submitted by third parties or other users that may be offensive, indecent or otherwise objectionable, and that MailMart is held harmless from any liability resulting or arising out of same. Likewise, MailMart shall not be held liable for any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content transmitted through the Service.
12. Use of Service and Storage Limitations
MailMart may, at its sole discretion, establish and enforce general practices, policies and limitations with regard to your use of the Service, including, but not limited to: a) the maximum number of day(s) that electronic mail messages or other uploaded content will be stored by the Service; b) the maximum number of electronic mail messages that may be sent or received by your account through the Service; c) the maximum size of any electronic mail messages that may be sent or received by your account through the Service; d) the maximum disk and/or server space that will be allotted to you on MailMart’s servers for your use of the Service; and/or e) the maximum number of instances and duration which you may access the Service in a given period of time. The amount of electronic mail storage on MailMart’s server allotted to you for your use of the Service is limited; however, additional storage space for electronic mail messages may be available to you upon payment of additional fees. MailMart shall not be held liable for the deletion of an electronic mail message or the failure to compose or send an electronic mail message through use of the Service, nor is MailMart liable for electronic mail messages that are not processed or sent due to space limitations or outbound message limitations. MailMart reserves the right to log off the account of any end user which has been inactive for an extended period of time, at the sole discretion of MailMart. MailMart further reserves the right to modify, add to or otherwise change these practices, policies and limitations at any time, with or without notice to you, at its sole discretion.
13. Prohibited Content
MailMart completely forbids Websites, services or products by any people who:
Sell, provide, offer or offer to sell the following types of content, products or services within the realm of: sexual goods, pornography, pornographic services or anything related to those types of products, services or goods. This includes (but is not limited to): videos, software, magazines, escort services, illegal goods, drugs, accessories or contraband related to drugs, pirated software, or instructions or education on how to create grenades, bombs, illegal arms or other weapons.
Markets, displays or offers any material that exploits children or minors (anyone 18 years old and under).
Offers, promotes, sells or provides either services or content related to commercial email spam, which includes but is not limited to: illegal, Web-based or even direct pharmaceutical sales. This also includes sex or sex-related products, work at home businesses, credit repair, debt relief services, financial management services, trade or stock tips, refinancing and mortgage-related services, DJ services, party and/or nightclub promotion, gambling, bet-making or odds-based services, which may include but is not limited to casinos or casino games, racetrack or dog-racing bets, poker, online betting businesses, and both pro and college sporting event betting services.
Provides, markets or offers any offensive material that expresses prejudice, racism, bigotry, hatred, profanity, or any material that uses lewd, excessively violent, lascivious, dirty, or other questionable and objectionable content.
Provides, posts, markets or offers personal information about children or minors (anyone 18 and under) without the permission of their parents or legal guardians.
Promotes, posts or offers any type of product or service that is illegal in the geographic area of where the content is created, sent from or received.
Distributes or unleashes nefarious computer or technology related items that include but are not limited to viruses, harmful code, trojans, key-logging software or other types of spyware. Distributes, promotes, posts or offers services or content that solicit participation in pyramid or ponzi schemes, multi-level or channel (MLM) businesses or services that include but are not limited to work at home jobs, “get rich quick” schemes, services or content that offers ways to “build wealth” or become "financially independent".
Distributes content that could be considered threatening, defamatory, libelous or harassing. Promotes or solicits material that encourages violence or subterfuge against organizations, governments, groups, individuals or public figures, or sends out or promotes anything that gives instruction or assistance in carrying out aforementioned violence or behavior. Distributes or uses any content not owned by the sender including photos, artwork or content without the express written consent of the owner, or distributes any material that identifies or displays images of people without their express written consent.
MailMart reserves the right to show the clients logo and name on our site as representing that they use our service for advertising purposes only. Any client can be removed from said list by simply emailing us or sending written confirmation of the same.
As End User of the Service, if you disagree and/or are dissatisfied with the Service, in whole or in part, or with any provision of this Agreement, in whole or in part, or any subsequent modifications thereto, it is your sole and exclusive obligation and remedy to terminate your End User account, for any reason and at any time. To terminate your account, you must immediately discontinue your use of the Service, notify MailMart of your intention to terminate your End User account, and destroy all content and materials obtained through your use of the Service, all related documentation and any originals or copies of same. Upon execution of the termination process, you must cease all use of the Service immediately, and any license granted to you by MailMart to use the Service will be revoked. Termination of this Agreement and your End User account to use the Service shall not have any effect on your obligations to MailMart under any other agreement or policy relating to the MailMart Service. Upon termination of your End User account, MailMart shall not be liable, in any way, to you or any third party for termination of your use of the Service, and MailMart shall not be obligated to forward any unread, unsent or unprocessed electronic mail messages to you or any third party. MailMart reserves the right to immediately terminate your End User account and your access to the Service for any violation of the terms and conditions set forth in this Agreement, with or without prior notice to you, for any reason in MailMart’s sole and exclusive discretion. Upon termination of your End User account and your access to the Service, you must destroy all content and materials obtained through your use of the Service, all related documentation and any originals or copies of same. Upon termination of your End User account by MailMart, MailMart reserves the right to immediately delete all electronic mail messages in your End User account and prohibit any and all further access to those electronic mail messages and/or your use of the Service. All Terminations by MailMart for spamming abuse are absolutely non-refundable without exception.
Since we are a month-to-month service, you may cancel your account at any time. Your subscription fee is prepaid so we simply require that you cancel prior to your monthly renewal date or you will be charged your next month’s subscription fee. We do not prorate or refund our service.
To cancel your account, login to your MailMart account, go to the My Account tab, click on the Plan Information box, scroll to the bottom and click on Cancel My Account and complete the process. You will receive a cancellation confirmation message on screen and by email which includes your Cancellation confirmation number. Your account will remain accessible and active up until the day before your renewal date. After that date, you will have access to your account for a few months, you will just not be able to send emails.
PLEASE NOTE THAT UNTIL YOU PROVIDE US WITH A COMPLETED CANCELLATION REQUEST, YOUR ACCOUNT WILL BE CHARGED MONTHLY (OR ANNUALLY, IF THAT IS YOUR ACCOUNT TYPE) FOR YOUR SUBSCRIPTION FEE. INACTIVITY IN YOUR ACCOUNT WILL NOT CONSTITUTE A CANCELLATION. YOU WILL BE RESPONSIBLE FOR ANY OUTSTANDING BALANCES AS WELL AS RELATED COLLECTION COSTS. IF, FOR ANY REASON, AN UPLOADED CONTACT LIST IN YOUR ACCOUNT IS NOT APPROVED, YOU, "THE CLIENT," ARE RESPONSIBLE FOR CANCELING YOUR ACCOUNT.
15. Disclaimer of Warranties
You expressly agree that use of the Service is at your sole risk. The Service is provided by MailMart on an “as is” and “as available” basis. MailMart expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. MailMart makes no warranties that the Service will meet your requirements and/or be uninterrupted, timely, secure or error-free, nor does MailMart make any warranty as to the accuracy or reliability of any information obtained and/or downloaded through the use of the Service or that defects in the system and software will be corrected. MailMart makes no warranty regarding any goods or services purchased or downloaded through the use of the Service or any third-party links or any information obtained or transactions entered into through the use of the Service. No advice or information, whether oral or written, obtained by you from MailMart shall create a warranty not expressly stated herein. Furthermore, MailMart makes no warranties concerning the suitability of the content provided through the Service for any purpose.
16. Disclaimer of Liability
MailMart shall not be liable for any damages whatsoever, whether direct, indirect, punitive, incidental, special or consequential, arising out of or in any way connected to the use of the Service or with the delay or inability to use the Service, or for any information, products and services obtained through use of the Service, or otherwise arising out of the utilization of the Service, whether based in contract, tort, strict liability or otherwise, even if MailMart has been advised of the possibility of said damages. Furthermore, MailMart shall not be liable for any damages arising from the interruption, suspension or termination of the Service, including, but not limited to, direct, indirect, incidental, special, consequential or exemplary damages, whether or not such interruption, suspension or termination was justified, negligent or intentional
MailMart reserves the right to modify and/or discontinue the Service, whether temporarily or permanently, with or without notice to the users, and MailMart shall not be liable to you or any third party for any such modification and/or discontinuance of the Service. MailMart further reserves the right to make revisions, modifications, additions, deletions or any such changes to this Agreement at its sole discretion, at any time, with or without notice to its users.
You agree to indemnify and hold MailMart, subsidiaries, affiliates, officers, agents, representatives, successors, members, principals and other partners and employees harmless from any loss, liability, claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Site or services set forth in this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations, obligations and warranties set forth above. MailMart reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not, in any event, settle any matter without the written consent of MailMart.
If there is any dispute about or involving the Service provided by MailMart, by using the Service, you agree that the dispute will be governed by the laws of the State of California without regard to its conflict of law provisions. You agree to personal jurisdiction by an arbitrator or mediator and the federal courts of the State of California. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial (or other) Arbitration Rules (including the Emergency Interim Relief Procedures), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You agree to be bound by these terms and conditions, including Section 19 thereof, which provides that you desire to resolve disputes relating to MailMart through arbitration; and by agreeing to arbitration, you are giving up various rights, including the right to trial by jury.
If any term or provision of this Agreement is determined to be illegal, unenforceable or invalid in whole or in part for any reason, such illegal, unenforceable or invalid provision(s) or part thereof shall be stricken from this Agreement, and such provision(s) shall not affect the legality, enforceability or validity of the remainder of this Agreement. If any provision or part thereof is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor to the stricken provision as is legally possible.
21. Entire Agreement
This Agreement represents the entire agreement between you and MailMart with respect to your use of the Service, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and MailMart with respect to your use of the Service.