Through its Deliverability Agent ™ (the "Services") Deliverability Agent ("Deliverability Agent") provides web site operators and other individuals a variety of tools and resources to collect visitor e-mail addresses and to create, launch, and manage online e-mail campaigns. This service may not be used for the sending of unsolicited e-mail (sometimes called "spam"). See our Acceptable Usage and Anti-Spam Policy. The following are the terms and conditions for use of the Services. By checking the "I accept these terms and conditions" box on the Sign Up page, you accept these terms and conditions.
1.1 The Services are provided subject to this Agreement, as it may be amended by Deliverability Agent, and any guidelines, rules or operating policies that Deliverability Agent may establish and post from time to time (the "Agreement"). By posting updated versions of the Agreement at the Deliverability Agent.com web site, or otherwise providing notice to you, Deliverability Agent may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at 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, please do not 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 e-mail communications with visitors and other targeted prospects.
1.4 Both the number of e-mail messages sent and the number of KiloBytes of data transferred are metered by Deliverability Agent. Normal Deliverability Agent accounts allow you to send a fixed number of e-mail messages per month with the total KiloByte data transfer of all messages not exceeding 20 KiloBytes multiplied by the total number of allowed e-mail messages per month. Additional data transfer may be purchased at U.S. $1.00 per 10 MegaBytes of data transfer. Unused e-mail volume and unused data transfer do not carry over from month to month.
1.5 For standard accounts, the Services will be subject to monthly subscription fees ("Paid Services"). Access to the Services will be disabled until payment is received. Paid Services are billed quarterly, 3 months at a time, in advance, according to the Fee Schedule provided to you by Deliverability Agent, unless alternate billing arrangements have been agreed to by you and an authorized Deliverability Agent representative. The Fee Schedule, including volumes of e-mail, data transfer limits, and prices, are subject to change at any time. All fees paid to Deliverability Agent for Deliverability Agent are non-refundable, unless account is terminated by Deliverability Agent for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by Deliverability Agent, unless other payment arrangements have been made between you and an authorized Deliverability Agent representative. You hereby authorize Deliverability Agent to charge your credit card for such amounts on a regular basis, but generally at the beginning of the quarter every quarter anniversary date of your account. You may upgrade your account for a particular monthly period from your base level subscription to allow more e-mail sending or more data transfer for a particular month. In such cases, you authorize Deliverability Agent to charge your credit card on the day you upgrade, the difference between the new level you are upgrading to and the base level. If you do not upgrade but you still send more e-mails or use more data transfer than your prepaid level during a particular monthly period, you authorize Deliverability Agent to bill for the actual service level used minus the prepaid amount. Fees are payable in US dollars. If Deliverability Agent is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail and your Deliverability Agent account will be disabled until payment is received. Monthly pricing may vary based upon number of e-mails sent and size of e-mails sent, and you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by Deliverability Agent.
1.6 For pay-as-you-go accounts (also known as overage-allowed accounts), available only by special request, the Services will be subject to minimum monthly subscription fees ("Paid Services") of not less than $30. Access to the Services will be disabled until payment is received. Paid Services are billed quarterly, 3 months at a time, in advance, according to the Fee Schedule provided to you by Deliverability Agent, and at the end of each month, depending on how many e-mail messages and how much data was transferred during the month. The fee at the end of the month will be calculated using a modified version of the Fee Schedule minus the pre-paid subscription amount for the month. The modified version of the Fee Schedule will be the normal Fee Schedule, except that pricing tiers are broken down into $100 increments. The Fee Schedule, including volumes of e-mail, data transfer limits, and prices, are subject to change at any time. All fees paid to Deliverability Agent for Deliverability Agent are non-refundable, unless account is terminated by Deliverability Agent for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by Deliverability Agent, unless other payment arrangements have been made between you and an authorized Deliverability Agent representative. You hereby authorize Deliverability Agent to charge your credit card for such amounts at the beginning of the quarter every quarter anniversary date of your account and at the end of every month, based on number of e-mail messages sent and amount of data transferred. Fees are payable in US dollars. If Deliverability Agent is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail and your Deliverability Agent account will be disabled until payment is received. Monthly pricing may vary based upon number of e-mails sent and size of e-mails sent, and you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by Deliverability Agent.
1.7 For all accounts, Deliverability Agent may charge an account re-activation fee should an account need to be re-activated by customer after account has become de-activated due to non-payment or an untimely authorization for payment.
1.8 You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an e-mail address and password for your Deliverability Agent account. 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. Deliverability Agent reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
1.9 It is understood that Deliverability Agent makes no guarantee that HTML messages will be rendered properly on all recipients' e-mail programs, due to the wide variety of HTML generation tools available. Deliverability Agent makes every attempt to make sure that all e-mail messages sent through our servers follow W3C and IETF e-mail standards, but we cannot guarantee that messages will look consistent across all e-mail platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML e-mail messages, it is expected that recipients of your message using a non-Microsoft e-mail application may have difficulty reading your message. For best results Deliverability Agent recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards. Deliverability Agent also provides a built-in browser-based HTML editor which you may use to compose your HTML message. This is provided as-is. Deliverability Agent makes no guarantee that the HTML generated by the browser-based HTML editor will result in messages that look the same on all e-mail platforms.
1.10 To receive support, you must either fill out the form at http://www.Deliverability Agent.com/support/ or call the support telephone number listed on the "Contact Us" page of the Deliverability Agent web site. E-mails about new support issues sent directly to a Deliverability Agent staff member may result in a delayed response. Some support issues are outside the scope of Deliverability Agent's standard support -- these issues may be denied support alltogether or quoted for separately, at which time the customer will have the opportunity to decide whether to have the Deliverability Agent staff person proceed or not.
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 Deliverability Agent company names and logos and all related product and service names, design marks and slogans, are the property of Deliverability Agent 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 Deliverability Agent. 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 Deliverability Agent 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 e-mail to any third party. You hereby agree to indemnify and hold harmless Deliverability Agent 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 Deliverability Agent has no obligation to monitor the content provided by you or your use of the Services, Deliverability Agent 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 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.
2.5 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Deliverability Agent. Deliverability Agent 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 Deliverability Agent, Deliverability Agent may share your information with the Marketing Partner. Deliverability Agent will not provide information to companies you have not authorized, and Deliverability Agent will not permit the companies that get such information to sell and redistribute it without your prior consent.
2.6 Deliverability Agent will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer and account information will not be shared with any other parties, unless Deliverability Agent is required to disclose such information in connection with legal process or in accordance with any law, regulation or order of a court or regulatory agency of competent jurisdiction. In addition, Deliverability Agent will not use your customer information for the purpose of sending unsolicited commercial e-mail.
2.7 You will adopt and maintain the Privacy Statement, which may be modified by Deliverability Agent from time to time.
3.1 You may terminate this Agreement at any time by contacting Deliverability Agent via http://www.Deliverability Agent.com/support or by sending written notice to Deliverability Agent at 232 Pheasant Run, Louisville, CO 80027, USA. Correspondence must include your first name, last name, and Deliverability Agent username. No refunds will be issued if you terminate this agreement.
3.2 Deliverability Agent may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Upon termination by Deliverability Agent for reason other than violation of the Anti-Spam policy, Deliverability Agent will provide you a proportionate refund of the advance quarterly payment which Deliverability Agent has received for the then-current month, based on the number of days remaining in the quarter following the date of termination. Except for such refund, Deliverability Agent shall have no liability to you or any third party because of such termination. If Deliverability Agent terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.
3.3 Deliverability Agent may 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.
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. Deliverability Agent 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 Deliverability Agent 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 Deliverability Agent to use commercially reasonable efforts to adjust or repair the Services.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL Deliverability Agent 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 "Deliverability Agent ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF Deliverability Agent 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, Deliverability Agent 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 Deliverability Agent 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.
You may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
7.1 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.
7.2 Deliverability Agent 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.
7.3 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 Deliverability Agent in any respect whatsoever.
7.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
7.5 The Agreement shall be governed by the laws of the State of Colorado, 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 Louisville, CO.
It is understood that in order to use Deliverability Agent, a Windows PC with Internet Explorer 6.0 or higher must be used. Additionally, a stable connection to the Internet is required. Deliverability Agent may work in a limited manner on Macintosh, Unix, and other platforms, but there is no guarantee of functionality on non-Windows platforms. Additionally, Deliverability Agent may work in a limited manner on a non-Internet Explorer web browser (such as Firefox), but there is no guarantee of full functionality on web browsers other than Microsoft's Internet Explorer.
Deliverability Agent reporting data is regularly purged from your account, in order to prevent our core database from growing beyond its capacity. Data is not recoverable once it has been purged.