303 MEDIA
SERVICE AGREEMENT AND SOFTWARE LICENSE TERMS
Through its Mail Manager (the "Services") 303 Media, LLC. ("303 Media") provides web site operators a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online marketing campaigns. This service may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By clicking the submit button bellow you accept these terms and conditions.
1. Services and Support
1.1 The Services are provided subject to this Agreement, as it may be amended by 303 Media, and any guidelines, rules or operating policies that 303 Media may establish and post from time to time (the "Agreement"), including without limitation Mail Manager's email privacy policy, as linked from all email generated from Mail Manager or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on the Service or at the 303Media.com web site, or otherwise providing notice to you, 303 Media may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services in its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.
1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services.
1.3 The Services enable corporate web sites, small business web sites, and community sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute email marketing communications with visitors.
1.4 Access to the Services may be disabled until payment is received. Paid Services are billed monthly or pre-paid, in advance, according to the Fee Schedule provided to you by 303 Media. The Fee Schedule, including subscriber levels and prices, are subject to change at any time. Amounts paid for the services are not refundable.
1.5 You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. 303 Media reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
1.6 You will be billed monthly for any and all services performed by 303 Media and it's employees. Monthly pricing may vary based upon subscriber count or emails sent.
1.7 You acknowledge that from time to time that email delivery of email messages may be blocked or prevented at the destination mail servers sent through Mail Manager. You acknowledge and agree that you are responsible for paying Fees for all email messages sent through Mail Manager, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by any third party. You are responsible for monitoring, correcting and updating the email addresses to which messages are sent through your Mail Manager account.
1.8 303 Media reserves the right to refuse registration of, or cancel, accounts it deems inappropriate. Your account may be canceled at any time for any reason. Payment mey not be refunded. 303 Media reserves the right to delete any content or data in your account at any time, with or without notice.
2. Restrictions and Responsibilities
2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
2.2 You acknowledge and agree that the Services and the 303 Media company names and logos and all related product and service names, design marks and slogans, are the property of 303 Media or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of 303 Media. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in 303 Media or its third party suppliers, as the case may be.
2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless 303 Media against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although 303 Media has no obligation to monitor the content provided by you or your use of the Services, 303 Media may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
2.4 Every email message sent in connection with the Services must contain an "unsubscribe" link that allows visitors to remove themselves from your mailing list and a link to the then current Email Privacy Policy (see Section 2.9 below). You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You agree to only import permission-based lists (note: purchased lists may not be used, please contact 303 Media if you have questions). You cannot mail to distribution lists, newsgroups, or spam email addresses. You cannot import more than 5000 email addresses into MailManager unless approved by a 303 Media staff member. You cannot copy a Mail Manager template and use the design for purposes other than sending emails from Mail Manager. 303 Media, at its own discretion, may immediately disable your access without refund to the Services if 303 Media believes in its sole discretion that you have violated any of the restrictions listed above.
2.5 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in this jurisdiction or your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights. See 303 Media's Prohibited Content and Commerce Statement for details.
2.6 For every email message sent in connection with the Services, you acknowledge and agree that the Services may automatically add an identifying footer stating "Powered by Mail Manager" or a similar message. You agree to cooperate with and provide reasonable assistance to 303 Media in promoting and advertising the Services.
2.7 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to 303 Media. 303 Media may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you. If you licensed the Services as a result of solicitation by a Marketing Partner of 303 Media, 303 Media may share your information with the Marketing Partner. 303 Media will not provide information to companies you have not authorized, and 303 Media will not permit the companies that get such information to sell and redistribute it without your prior consent.
2.8 303 Media will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties.
2.9 You will adopt and maintain the Email Privacy Policy, which may be modified by 303 Media from time to time.
2.10 Any subscriber or customer data or list of email addresses you transmit to us in any way must be an opt-in list. By registering for our service you agree that any submitted data contains opt-in individuals. Purchased or traded lists are not considered opt-in lists. You need to gain their permission first, before putting individuals onto your "opt-in" list. Harvested list or lists using software that spiders websites for email address is completely forbidden. You bear full responsibility for spam abuse complaints.
2.11 CAN SPAM Act of 2003 - You are required to place an accurate physical mailing address on any and all email messages you send out using our service. You agree to comply with all requirements and restriction of the CAN SPAM Act of 2003.
2.12 You are fully responsible for complying with any and all legal requirements or restrictions that may apply to you as mandated by any jurisdiction.
3. Termination
3.1 You may terminate this Agreement at any time by sending an email message to support@303Media.com or by sending written notice to 303 Media at 221-B E. Clay St. Richmond, VA 23219. There are no refunds for any fees paid.
3.2 303 Media may terminate this Agreement or the Services at any time with or without cause, and with or without notice. 303 Media shall have no liability to you or any third party because of such termination.
3.3 303 Media will delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
3.4 If you do not log into your account for more than 90 days, the account will become inactive. When an account is classified (at 303 Media's sole discretion) as inactive, 303 Media will notify you by email. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE 303 MEDIA DATABASE.
4. Warranty Disclaimer; Remedies
USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. 303 MEDIA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND 303 MEDIA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for 303 Media to use commercially reasonable efforts to adjust or repair the Services.
5. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL 303 MEDIA OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "303 MEDIA") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF 303 MEDIA SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, 303 MEDIA IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF 303 MEDIA TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
6. Miscellaneous
6.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
6.2 303 Media and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
6.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind 303 Media in any respect whatsoever.
6.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
6.5 The Agreement shall be governed by the laws of the Commonwealth of Virginia, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Richmond, Virginia.
6.6 You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.7 We do not send paper or email invoices, we accept Credit Card Payment Only. In the rare event that 303 Media does agree to send you an invoice (non-credit card) there is a minimum non-refundable charge of $500, we will not invoice for less.
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