Terms & Conditions of Use
This Service Agreement ("Agreement") is made by and
between Delivra ("Delivra"), an Indiana Corporation and the Client
Company ("Company").
BY ACCEPTING THIS AGREEMENT OR BY ACCEPTING THE PROPOSAL THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective between the Company and Delivra as of the date the Company accepts this Agreement.
1. Service Agreement. Delivra agrees to provide Company with email list and/or production services (the"Service") subject to the terms of this Agreement, the Proposal Acceptances stated in Exhibit A, and the Operating Rules stated in Exhibit B. This Agreement, the Prices and the Rules state the full agreement between Delivra and Company with respect to the Service to be provided to Company by Delivra. Any other or prior agreements between Delivra and Company with respect to the subject matter of this Agreement are hereby superseded.
2. Right to Modify. This Agreement and The Rules may be supplemented, modified or amended (each a "Revision") by Delivra at any time at its sole discretion, and each such revision will be effective two (2) days after it has been sent to Company by Delivra, pursuant to Section 11 ("Notices"). If any Revision is not acceptable to Company, Company may terminate this Agreement in the manner provided in Section 10 ("Termination") below. Company's continued use of Delivra's services under this Agreement after the effective date of such Revision shall be deemed to constitute acceptance of the Agreement as so supplemented, modified or amended. Except as otherwise stated in this Section 2 and Section 4, this Agreement may not be amended, except by a written agreement signed by both parties.
3. Activation and Use of System. (a) Following execution of this Agreement, Delivra shall provide Company with an account name and a password that will allow access to Delivra. (Sometimes referred to as the "System"). Company will use Delivra as an Independent Content Provider ("ICP"). As an ICP, Company shall be liable and responsible for any and all activities conducted through its account by Company or, if applicable, by Company's users, whether or not such activities have been authorized by Company. (b) Upon Delivra's request, Company shall provide Delivra with accurate and complete registration information with respect to Company's use of the System (including the identity of Company's authorized users and their passwords) and to promptly update such information as changes occur. Company's failure to provide or update such information shall constitute a breach of this Agreement and this shall be grounds for Delivra to terminate this Agreement or the right of any person associated with Company to use the System (including any person using Delivra through Company's account with or without Company's authority).
4. Charges. (a) Company will be charged for the use of Delivra services in accordance with the Prices. Delivra may modify the Prices at any time pursuant to section (b) of this Section 4. Payment shall be due upon receipt of Delivra's invoice. Delivra may impose a service charge of up to 10% of the unpaid portion of any payments that are not paid within 30 days of receipt of invoices. (b) The present rates for the Services are stated in the Prices. These rates are subject to change by Delivra at any time and such change shall become effective thirty (30) days following the delivery of a notice pursuant to Section 11 ("Notices"). If any change in rates is not acceptable, Company may terminate service under this Agreement as provided in Section 10 ("Termination"). However, Company's continued use of the Service following the effective date of any change in rates shall be considered acceptance of such change. (c) Company is responsible for all charges arising out of its use of the System whether or not Company authorizes such use.
5. Use of System Content. (a) Company may charge their users under separate agreements for use of the system and any information, communications, software, photos, video, graphics, music, sounds and other material and services provided by Company or other users of Company's account (collectively referred to as "Content"). (b) Company acknowledges, and shall also notify its authorized users, that Delivra is not responsible for and does not give any assurance to any person with respect to the validity, value, usefulness or accuracy of Content. Company and any person using Company's account shall bear any risk associated with the Content. Delivra has the right to monitor the use of the System, including the Content, which may appear from time to time. However, Delivra does not prescreen or attempt to censor or review any Content prior to its appearance on the System. Delivra has the right (but not the obligation) to require Company to remove, prohibit or discontinue any Content on the System which Delivra, in its sole discretion, determines to be harmful, offensive or otherwise in violation of or this Agreement.
6. Intellectual Property Rights. (a) Content Subject to Rights - Company acknowledges that Content on Delivra, whether provided by Company or others may include material which is the subject of and protected by copyrights, trademarks, service marks and other proprietary rights ("Rights"). Company acknowledges that such Rights are valid and valuable and are protected and apply to all media that now exists or may in the future exist. Unless specifically provided elsewhere in this Agreement, Company's ability to use any Content that is protected by such Rights shall be governed by applicable law including relevant patent and trademark law. (b) Company Warranty - Company agrees, and will require each and every one of its users to agree, (i) that it will transmit on Delivra only Content that is not subject to any Rights in favor of any other party or Content in which the holder of any Rights has given express consent to such transmission and (ii) that by transmitting or allowing the transmission of any Content on the System, Company or Company's users automatically warrant that Delivra has the right to transmit and display such Content in whole or in part on Delivra. Company may obtain the consent of its users to the covenants provided in this Section by requiring such persons to perform sign-on procedures that will confirm their agreement to and acceptance of these conditions. (c) Lawful Use - Company agrees to use Delivra only for lawful purposes. Company recognizes and agrees that Delivra at its sole discretion may monitor any and all areas of Delivra to oversee compliance with this Agreement and Company will so inform its users that their use of the System will constitute consent to such monitoring. If Company or any of its users restricts or inhibits any other Company or user of Delivra, Delivra may, at its discretion, terminate or limit the right of Company or Company's user to use Delivra.
7. International Usage. Company acknowledges that its use of the System allows access to Content originating from other Company's, ICPs, and third parties located in countries other than the United States. Company agrees that its access to and use of such Content may be governed (in addition to this Agreement and the Rules) by separate terms and operating policies that conform to appropriate and applicable national laws and customs.
8. No Warranty. COMPANY EXPRESSLY AGREES THAT USE OF THE DELIVRA SYSTEM, DELIVRA SERVICES AND SOFTWARE ARE AT THE COMPANY'S SOLE RISK. DELIVRA SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE. DELIVRA'S LIABILITY TO COMPANY FOR BREACH OF THIS AGREEMENT IS LIMITED SOLELY TO THE AMOUNT PAID BY COMPANY TO ACCESS AND USE THE SYSTEM AND DELIVRA SOFTWARE AND SERVICES FOR THE PERIOD OF TIME DURING WHICH THE SYSTEM FAILED TO OPERATE AS A RESULT OF DELIVRA'S ACT OR OMISSION. THE REFUND OF FEES PAID TO DELIVRA FOR THE PERIOD DURING WHICH THE SYSTEM MAY HAVE FAILED TO OPERATE AS A RESULT OF DELIVRA'S ACT OR OMISSION SHALL BE COMPANY'S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SYSTEM AND DELIVRA'S SOFTWARE AND SERVICES. IN THE EVENT ANY STATE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF ANY WARRANTY OR LIABILITY UNDER THIS AGREEMENT, DELIVRA'S LIABILITY IN SUCH STATES SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL DELIVRA BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES.
9. Indemnification. Upon request by Delivra, to the extent permitted by applicable law, Company agrees to defend, indemnify and hold harmless Delivra, its affiliated companies, licensees and ICPs from all liabilities, claims and expenses, including attorneys' fees, arising from breach of this Agreement or by Company or any of Company's users by use of, or in connection with, the transmission of any Content on the System whether or not such use was authorized by Company. Delivra reserves the right to approve Company's counsel to defend any such claims, which approval will not be unreasonably withheld, and to approve any settlement agreement that is not fully covered by applicable insurance. Delivra, at Company's expense, shall cooperate with Company in the defense of any claims, subject to this indemnification. Delivra also reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Company hereunder, and in such event, Company shall have no further obligation to provide indemnification for such matter.
10. Term & Termination. User subscriptions purchased by the Client Company commence on the start date specified in the applicable Proposal Acceptance and continue for the subscription term specified therein. Except as otherwise specified in the applicable Proposal Acceptance, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
Either Company or Delivra may terminate Company's right to use the System at any time and for any reason, with or without cause. Subject to the provisions of Section 8, If Company is dissatisfied with any term of this Agreement or any Rule, policy or practice of Delivra in operating the System, or in the Content appearing on the System or the amount or type of fees or billing methods, or any change therein, Company may terminate this agreement by delivering written notice to Delivra in the manner provided in Section 11 and in such instance this will be Company's sole remedy. Company's notice of termination will be effective upon receipt by Delivra. In the event that a Company's account is so terminated or canceled by Company or Delivra, Company will be entitled to the refund of any fees that have been paid in advance with respect to the remainder of the term of this Agreement provided Company is not otherwise in breach of this Agreement. Delivra will be entitled to liquidated damages of set up fees as stated in Prices for annual service plans.
11. Notices. All notices must be in writing and delivered to the signatory listed on each related Exhibit A (for notices delivered to Company) and to Neil Berman, President, Delivra and to the current account executive (for notices delivered to Delivra).
12. Delays. Delivra shall not be liable for failure to perform hereunder due to the inability of Company, Delivra or any other person to connect to the Internet, or any other failure or unavailability of the Internet for any cause whatsoever, acts of God, or of the public enemy, or of any government or agency thereof, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, severe weather, differences with workmen, restrictions imposed by governmental agencies, war, hostilities, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation or any other cause beyond the control of Delivra, or Delivra 's exercise of its rights under this Agreement. In the event of delay by Delivra due to any such cause, the date of performance of any act by Delivra will be postponed by such length of time as may be reasonably necessary to compensate for such delay.
13. Privacy. Delivra shall exercise reasonable commercial efforts to make list manager system secure. Delivra shall not make Company's passwords available to anyone who is not an authorized agent or employee of Delivra or a list administrator who has been so designated to Delivra in writing. Delivra acknowledges that memberships lists provided to Delivra by Company in connection with this Agreement are the property of Company. Unless Delivra receives specific instructions from Company to the contrary, Delivra will not sell, license, share, transfer or otherwise disclose Company's memberships lists or Company's list administrator's login information to any third party except as otherwise specifically provided in the Agreement. Delivra may access Company's membership lists in order to unsubscribe a member who has sent to Delivra a request that it do so or a complaint to the effect that such member is unable or unwilling to unsubscribe themselves, or if such member violates the Rules or the terms of this Agreement.
14. Applicable Law. To the extent of any conflict between this Agreement and applicable law, this Agreement shall take precedence. If any portion of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties and the remaining portions shall remain in full force and effect. The laws of the State of Indiana, excluding its conflicts of law rules, shall govern this Agreement and Company and Delivra each submit to the exclusive jurisdiction of the courts of the State of Indiana for the enforcement of this Agreement or any action arising out of or relating to this Agreement. This Agreement shall bind and be for the benefit of the parties hereto and their respective successors and assigns.
EXHIBIT A - Proposal Acceptance
See Proposal Acceptance, with pricing and authorized approvals, assenting to the terms as outlined above.
EXHIBIT B - Operating Rules
Acceptable Use Policy
Company will not:
1. Send unsolicited bulk email, whether it is commercial or non-commercial. Company's email will be considered unsolicited if Company's membership addresses are not 100% opt-in by Company's members. If Company's email addresses came from harvesting, a purchased email list, or other acquired method, it is considered unsolicited email.
2. Send email with an invalid "From:" or "Reply-to:" address. All messages posted to Company's list must contain valid email addresses, and Company must be responsive to all replies from members of Company's list, including unsubscribe requests. Company may not refuse unsubscribe requests from members of Company's list.
3. Harass, threaten, embarrass, or cause distress, unwanted attention or discomfort to a person or entity.
4. Post or transmit sexually explicit images or other content, which is deemed by Delivra or any of its ISP providers to be offensive.
5. Transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party, as determined by Delivra or its ISP providers.
6. Impersonate any person, including but not limited to, an official of Delivra or an information provider, or communicate under a false name or a name that Company is not entitled or authorized to use.
7. Intentionally or unintentionally violate any applicable local, state, national, or international law, including but not limited to any regulations having the force of law.
Unsubscribing: All list messages must include unsubscribe instructions in the body or footer of the message so members can unsubscribe themselves from the list. Company should respond to member requests for manual removal from the list with courtesy and timeliness. Please do not discard personal email messages Company receives asking to be removed from Company's list. Even if the user request for removal is aggressive, unfriendly, or otherwise rude, Company should nonetheless make every attempt to help the user get off Company's list and to diffuse the situation.
Membership List: Company may not use this service for one-time mailings to a list of members after which you delete the membership and create a new one. Company's membership must be a permanent list to which you add new members and/or members subscribe or unsubscribe themselves.
Violation: Violation of these Rules may result in removal of the list from our server and termination of the Company's account. Company should be aware that they are responsible for the behavior of their list members.