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 we maintain a “NO REFUND POLICY”.  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. 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.
 

Right to Refuse: We reserve the right to refuse any or all services based on our company policy of respectable marketing practices, at anytime. 

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. 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.

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.