Terms & Conditions

End User Services Agreement

Effective date: February 10, 2021

PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND iCONTACT MARKETING CORP. (“iCONTACT” OR “WE”) WITH RESPECT TO YOUR USE OF iCONTACT’S SOFTWARE, SERVICES AND APPLICATIONS (THE “SERVICE”). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICE.

1. Services. The Service facilitates your electronic distribution of customer-created content to your lists of subscribers or contacts, each of whom must have consented previously to the receipt of such content (“Recipients”) and may also include certain on-line marketing automation services. While Customer retains iContact to assist with the transmittal of content to its Recipients, Customer acknowledges that iContact does not actually send Customer content to Recipients on Customer’s behalf. The Service is comprised of a web-based technology platform through which such content is delivered once Customer sends such content. Among other things, iContact provides customer support and formatting assistance for the electronic content Customer desires to distribute. In all cases, iContact simply acts as agent for Customer with its authorization. Customer and not iContact is responsible for the content and accuracy of all information submitted for distribution via the Service, even if such content has been reviewed, edited or written by iContact. Customer agrees it will only use the Service for Customer’s own internal business purposes. If Customer does not intend to use the Service for business purposes, Customer must contact us at customercare@icontact.com.
2. Site and Policies. During the Term (as defined below) and subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that iContact may establish and post from time to time on icontact.com (the “Site”), including, without limitation, iContact’s anti-spam policy, privacy policy and prohibited content and commerce statement, each of which is incorporated herein by reference (collectively, the “Policies”), iContact agrees to use commercially reasonable efforts to provide Customer with the Service. From time to time, iContact may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on the Site, and Customer’s use of the Service thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees that its purchase of the Service is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by iContact with respect to future functionality or features.
3. Other Services.
   1. Professional Services. In addition to the Service, Customer may purchase certain premium services ( “Professional Services”or sometimes referred to as iContact Premier), which Professional Services may be customized pursuant to a mutually agreed upon written statement of work provided to Customer upon the earlier of its request or its selection of desired Professional Services (each a “Statement of Work”). The Professional Services are provided by iContact separate and distinct from the Service and are not required for Customer’s use or enjoyment of the Service. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of each of iContact and Customer. Any Professional Services purchased by Customer shall be used by Customer within the term of the applicable Sales Order.
   2. Monitoring. This Section 3.B sets forth the terms and conditions governing iContact’ provision and Customer’s use of the media monitoring service provided by iContact or its affiliate(s) (the “Monitoring Service”) and only applies if such service is included on the Sales Order, or is part of a suite of purchased services, in either case, the Monitoring Service shall be considered part of the Service.
      (i) iContact will monitor Customer’s social media feeds. iContact reserves the right, in its sole and absolute discretion, to refuse to undertake any monitoring that iContact reasonably deems improper or unlawful.
      (ii) Customer agrees that content provided to Customer through the use of the Monitoring Service will not be resold, republished or otherwise systematically distributed to third parties in any form, including but not limited to via an intranet, extranet or internet site.
      (iii) Customer acknowledges and agrees that in providing the Service, iContact will supply information prepared or authored by others (“Third Party Content”), and iContact is not responsible for the content of any such Third Party Content. iContact makes no representation or warranty, whether express or implied, regarding the origin, accuracy, correctness, completeness, subject matter, content, or editorial approach of any Third Party Content.
      (iv) Customer acknowledges and agrees that the Third Party Content monitored by iContact may be subject to copyrights owned by third parties. iContact does not imply, represent or warrant, by virtue of supplying information incorporating Third Party Content, that iContact holds or grants any license to use any content. Customer’s use of any content shall be at Customer’s sole risk and expense and usage may be subject to restrictions imposed by one or more third-party copyright owners, and Customer agrees that it shall comply with any such restrictions.
      (v) iContact does not represent or warrant that any specific sources will be monitored. iContact reserves the right to change the sources that it monitors at any time. iContact may need administrative access to Customer’s social media platform in order to provide the Monitoring Service.
   3. Landing Pages. This Section 3.C sets forth the terms and conditions governing iContact’ provision and Customer’s use of iContact’s landing pages (the “Landing Pages”) and only applies if such service is listed on a Sales Order, or is part of a suite of purchased services, in either case, the Landing Pages shall be considered part of the Service.
      (i) iContact will provide Customer with the ability to build Landing Pages that can be used to support Customer’s marketing campaigns. iContact does not endorse nor accept any responsibility for the content of or Customer’s use of the Landing Pages. iContact makes no representation or warranty, express or implied, regarding the origin, accuracy, licenseability, correctness or completeness of any information Customer obtains through the Landing Pages.
      (ii) Customer grants iContact and its Affiliates the non-exclusive right to capture data from Customer’s Landing Pages solely for use in providing the Service. Customer shall inform third parties visiting its Landing Pages of Customer’s collection, use, and monitoring; and shall do so in compliance with all applicable privacy and data collection laws.
      (iii) iContact reserves the right in its reasonable discretion to immediately disable Customer’s Landing Pages if Customer’s bandwidth significantly exceeds the average bandwidth usage of other Customers.
4. Freemium Plan. Some of the Services are offered on a free plan (“Freemium Plan”). In the event Customer elects to use the Freemium Plan, Customer will have cost free access to an account with a maximum of 1 user, 1 list, and 1 landing page. The account may include up to 500 contacts and 2,000 sends per month. Further details are posted on the landing page through which Customer subscribes to use the Services and a plan comparison is available here. Freemium Plan features such as Contact Limits and Level Limits are subject to change at any time. A Freemium Plan account will automatically terminate if no emails are sent from the account for 365 consecutive days. Customers may upgrade to a paid account with additional features and higher Contact Limits and Level Limits at any time.
5. Purchase. Pricing for email distribution is based upon which platform is being used and either (i) the number of Subscribers (“Subscriber Limits”); or (ii) the number of Contacts (“Contact Limits”) that Customer chooses to purchase as indicated on the webpage through which Customer subscribes to the Service or in a negotiated sales order, as the case may be (in either case, the “Sales Order”). Subscriber Limits are based upon the number of email addresses that are subscribed to a Customer’s particular email list in the Service. Contact Limits are based upon the total number of email addresses associated with the Customer in the Service. The Sales Order identifies Customer’s Subscriber Limits or Contact Limits, Level Limits (as defined below), term, subscription fee, payment method and other account information. If the Subscriber Limits or Contact Limits stored in Customer’s account exceeds the applicable level set forth in the Sales Order, Customer’s access to and use of the Service will be disabled until Customer: (i) reduces the number of Subscribers or Contacts stored in Customer’s account; or (ii) upgrades its account to at least equal the number of Subscribers or Contacts stored in its account. Customer may upgrade (but not downgrade) Customer’s Subscriber Limits or Contact Limits at any time during the term of this Agreement. Additionally, Customer will be limited by the total number of emails per month that may be sent “Level Limits”. The total number of emails per month that may be sent by Customer who has Subscriber Limits cannot exceed six (6) times the Subscriber Limits. The total number of emails per month that may be sent by Customer who has Contact Limits cannot exceed ten (10) times the Contact Limits. For example, if Customer’s Subscriber Limit is 100,000, Customer’s Level Limit is up to 600,000 emails per month. If Customer requires a sending limit higher than its Level Limit per month, Customer should contact iContact’s sales group at sales@icontact.com or 877-820-7837.
6. Fees and Payment. In consideration for the Service to be provided by iContact (other than through iContact Freemium Plan), Customer agrees to pay the monthly subscription fees set forth in the Sales Order (the “Subscription Fees”). Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Service may be blocked or prevented at destination email servers. Customer’s payment obligations continue regardless of whether delivery of email messages is prevented or blocked. In consideration for the Professional Services to be provided by iContact, if any, Customer agrees to pay the fees set forth in the Statement of Work or as otherwise provided to Customer by iContact, (the “Professional Fees,”together with the Subscription Fees, the “Fees”). All Fees are exclusive of taxes, levies, or duties imposed by taxing authorities. Unless collected and remitted by iContact, Customer is responsible for payment of all taxes due to a governmental authority, if any, except for taxes imposed on iContact’s net income. Customer shall provide to iContact any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability. Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice; or may be pre-paid in advance; or otherwise may be paid pursuant to the terms set forth in the Sales Order. If Customer is paying for the Services with a credit card, Customer hereby authorizes iContact to charge such credit card for Fees on a regular basis until such time as Customer’s account is terminated. If Customer is paying for the Services by credit card and such credit card is declined, iContact will send Customer notice thereof to Customer’s email address on record. If Customer misses a payment, iContact may notify Customer by phone or mail, but has no obligation to do so. Any payment due and not received by iContact by the due date may be subject, at iContact’s sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. In the event Customer fails to make timely payments when due, iContact may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding after ninety (90) days from its receipt of the invoice, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses. From time to time, and at any time, iContact may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
7. Customer’s Recipient Data. In offering the Service, we may collect personal information about Recipients. iContact will not own any data, information or material that Customer submits to iContact in connection with the Service (“Customer Recipient Data”). If any Customer Recipient Data relates to a Recipient who is a European Union resident, or is otherwise situated in the European Union, the parties shall comply with the European Data Protection Clauses, and in the event of any conflict between the provisions of the EUSA and the European Data Protection Clauses, the European Data Protection Clauses shall take precedence. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Recipient Data, and Customer is responsible for maintaining, securing and storing all Customer Recipient Data in accordance with applicable law. Upon any termination or expiration of this Agreement, Customer’s payment of all unpaid and outstanding Fees, and Customer’s written request received by iContact within thirty (30) days of such expiration or termination, iContact will provide Customer with an electronic file of the Customer Recipient Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, unless otherwise required by applicable laws, iContact has no obligation to retain the Customer Recipient Data and may delete and destroy such Customer Recipient Data without providing Customer with notice of such deletion. If Customer uses the Service during a trial period and fails to convert its account to a standard paid customer account upon the expiration or termination thereof, iContact has no obligation to retain the Customer Recipient Data after the date of such expiration or Termination and Customer agrees during such trial period not to request the return of any Customer Recipient Data. If Customer uses the Service through iContact Freemium Plan and fails to use the Service for at least sixty (60) consecutive days, as of the sixty-first (61st) day after Customer’s last use of the Service, Customer acknowledges and agrees that iContact has no obligation to retain the Customer Recipient Data and may delete and destroy such data without providing Customer with notice of such deletion. iContact will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Recipient Data.
8. Customer Information. iContact collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the “Customer Information”). iContact collects such information in order to provide the Service or the Professional Services, as the case may be, and related technical support. If you have provided your Customer Information, iContact may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone. When you activate an iContact account, you expressly consent to receive marketing communications via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. For more details about how iContact uses the Customer Information, including how to opt out of receiving communications, please see the Privacy Policy.
9. Data Disclosures. Except as otherwise set forth herein, iContact does not disclose, sell or rent Customer Recipient Data or Customer Information (collectively, the “Data”), without Customer’s prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits iContact to disclose the Data to: (i) iContact personnel who access and manage the Data in connection with the Service; (ii) service providers or Affiliates for purposes of providing functions or services related to the Service and iContact’s customers’ accounts; and (iii) iContact marketing partners through which Customer purchased the Service, if any. Except as otherwise set forth herein, iContact will not provide any Data to any third party without Customer’s authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer’s authorization.
10. Passwords. In connection with iContact’s provision of the Service, iContact will send to Customer’s email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Service (the “Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify iContact promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer’s negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.
11. Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Service, the Professional Services, and in any applications developed, owned or controlled by iContact (as applicable) (the “Software”), and the Service, are and shall remain the sole and exclusive property of iContact. Accordingly, Customer acknowledges that, as between iContact and Customer, iContact owns all right, title and interest in and to the Software and the Service, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Service. Customer acknowledges that the Software contains proprietary information and trade secrets of iContact. Customer will not take any actions inconsistent with iContact’s ownership of each of iContact’s rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by iContact. If you are using the Service in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. Customer hereby grants to iContact a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license during the term of this Agreement to use, copy, distribute, perform, display and publish Customer’s name, trademarks, logos and trade names solely for the purpose of providing the Service.
12. Use of Services. Customer acknowledges and agrees that it will use the Service (and the Professional Services as the case may be) only to access, employ, utilize, or display the Software solely for Customer’s “internal business purposes”by Customer’s employees or by independent contractors hired by Customer. For the avoidance of doubt, the term “internal business purposes,” as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) use the Service (and the Professional Services as the case may be) in any other manner which violates any Policy or any applicable law. Customer agrees to report immediately to iContact, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 13 or in any of the Policies. In the event of any suspected violation of any term, condition or restriction set forth in this Section 13 or in any Policy, or in the event iContact otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, iContact may immediately disable Customer’s access to the Service and suspend its provision thereof. The Service may include commenting or messaging functionality, functionality that allows posting or transmitting content to outward facing, social or public platforms. By doing so, Customer agrees not to post any of the following: (i) content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; (ii) content that violates, or that causes iContact to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction; (iii) content that infringes or violates any intellectual property or proprietary right of any party, or that Customer otherwise does not have the right to make available; (iv) Private or confidential information of any person or entity, any trade secrets or information for which Customer has any obligation of confidentiality, or any material that impersonates any person or entity or misrepresents Customer’s affiliation with any person or entity; (v) Viruses, corrupted data, or other harmful, disruptive, or destructive files or content; (vi) content that violates any terms or conditions, policies, or guidelines of any social media platform or other platform or service to which it is posted; or (vii) content that transmits any bulk unsolicited commercial communications. Customer acknowledges that iContact does not pre-screen or approve content, but that iContact has the right (but not the obligation) in its sole discretion to refuse, delete, or remove any content that is posted using any Services or that is displayed on or through the Services.
13. No Tampering. Each email message that is sent using the Service must contain an “unsubscribe” link that allows Recipients to remove themselves from Customer’s mailing list and a link to iContact’s Policies. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify either link. Further, each such email message may contain an automatic identifying footer such as “Powered by iContact.” Except as otherwise expressly permitted in writing by iContact, Customer agrees that it will not remove, disable or modify or attempt to remove, disable or modify such footer.
14. Confidential Information. Each of iContact and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information”means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party’s business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer’s Confidential Information. Nothing set forth herein shall be construed to prohibit iContact from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with its performance of the Services, such as a vendor or affiliate. From time to time, iContact may be required to disclose Customer’s Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by iContact or its legal counsel. In such event, Customer hereby permits iContact to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 15.
15. Representations, Warranties and Covenants. Customer represents, warrants and covenants to iContact that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Sales Order and that will be provided it during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Customer Recipient Data, the Service and the Professional Services, including, without limitation, its right to email Recipients, is and will at all times be in accordance with the terms and conditions set forth in this Agreement, the Policies and all applicable laws, rules and regulations, and without infringement or misappropriation of any intellectual property right or other right of a third party; (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services; (vii) it will use the Service in accordance with all applicable laws and regulations; (viii) it has the right, permissions and authority to provide Customer Information and Customer Recipient Data to iContact and (ix) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.
16. Third Party Products and Services. From time to time, certain third parties may offer products and services related to the Service (and the Professional Services, as applicable). Any subsequent business relationship, exchange of data or other interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party, and may require Customer to agree to a third party’s terms and conditions. Regardless of any recommendation by iContact or use of such third party products or services, iContact does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. Further, iContact cannot guarantee that use of such Third Party Products or Services will always be provided during the Term. While iContact may rely on data or information provided or generated by such third party products and services in the course of providing the Service (and the Professional Services, as applicable), Customer hereby acknowledges that iContact specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that iContact shall not be liable for any acts or omissions based on its reliance thereon. Accordingly, Customer hereby releases and holds harmless iContact from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.
17. Open Source Software. Customer acknowledges and understands that certain open source code may be incorporated into the Service (the “Source Code”). Except as otherwise set forth in the applicable Source Code license, the Source Code is provided “as is,” and without representation or warranty of any kind. Customer hereby releases and holds harmless iContact from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.
18. Disclaimer of Warranties. THE SERVICE (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, iCONTACT AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICE OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICE OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICE OR THE PROFESSIONAL SERVICES.
19. Limitation of Liability. IN NO EVENT WILL iCONTACT OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICE (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF iCONTACT OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL iCONTACT OR ANY REPRESENTATIVE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICE, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO iCONTACT FOR THE SERVICE DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against iContact more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or iContact’s non-provision, of the Service (or the Professional Services as the case may be), Customer’s sole and exclusive remedy shall be for iContact to use commercially reasonable efforts to repair or provide the Service (or the Professional Services as the case may be).
20. Indemnification. Customer agrees to indemnify, defend and hold harmless iContact, the Representatives, and its and their respective Affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from: (i) Customer’s acts or omissions; (ii) Customer’s violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada’s Anti-Spam Law (CASL), or the Policies; (iii) Customer’s breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer’s breach of any of its representations or warranties set forth herein; and/or (v) Customer’s infringement or misappropriation of any intellectual property rights or other rights of any person or entity.
21. Term and Termination. The Sales Order determines the initial term (the “Initial Term”) of your Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms equal to the same period of time as the Initial Term (each, a “Successive Term,”together with the Initial Term, the “Term”), and you will continue to be billed for the Fees until this Agreement is terminated in accordance with the terms and conditions set forth herein. At any time during the Term, either Customer or iContact may terminate this Agreement for any reason. If Customer desires to terminate this Agreement, Customer may request a termination by calling iContact customer care at (919) 459-0894, Monday through Friday, between the hours of 9:00 a.m. (EST) and 5:00 p.m. (EST) (a “Valid Termination Notice”). Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment term (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. If Customer wishes to terminate only the Professional Services, it should contact its account manager prior to such services being performed. iContact may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Such right to terminate this Agreement shall include iContact’s right to terminate its provision of the Service and/or the Professional Services (as applicable) and to pursue all available equitable and legal remedies (in the event Customer breaches any term or condition, or any of its representations or warranties set forth herein). Upon termination of this Agreement for any reason, all Customer Recipient Data may be destroyed and deleted in accordance with the terms and conditions set forth in Section 8 above. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay iContact Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
22. Governing Law. This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
23. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Raleigh, North Carolina. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, iContact shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of North Carolina, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
24. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between iContact and Customer. Customer does not have any right, power, or authority to act as a legal representative of iContact.
25. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of iContact. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
26. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
27. Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
28. Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between iContact and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the iContact and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with iContact which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favors iContact, as determined by iContact, shall govern.
29. No Waivers. iContact’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
30. Notice. iContact may provide Customer with general notice by electronic mail to Customer’s e-mail address of record, or by written communication sent by first class mail or pre-paid post to Customer’s address of record, or to such other address designated by Customer and communicated to iContact in accordance with the notice delivery provisions of this Section 31. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to iContact (such notice shall be deemed given when received by iContact) by using one of the following means: (i) letter delivered by a nationally recognized overnight delivery service; or (ii) by first class postage, return receipt requested, prepaid mail to iContact; in either event, to the following address: iContact Corporation, Attn: Support Department; 2121 RDU Center Drive, Fourth Floor, Morrisville, NC 27560. Notwithstanding the foregoing, Customer must adhere to the terms and conditions set forth in Section 22 above to provide iContact with notice of its intention to terminate this Agreement. Either Customer or iContact may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 31.
31. Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to you, iContact provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking “I Agree” or “I Accept” anywhere on the Site or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Site:(a) you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;(b) you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;(c) you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;(d) you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and(e) you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.If you wish to withdraw this consent, please contact us at customercare@icontact.com, in which case iContact shall have the right to terminate your use of the Services.
32. Export Restrictions. Customer acknowledges that the Service may be subject to U.S. or other countries’ export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Service (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
33. Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by iContact and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.