EkoBuzz,
Inc. ("EkoBuzz") provides a collection of tools, resources
and marketing support to create, launch, and manage online email
marketing campaigns (the “Email Marketing Services”) and online
mobile marketing campaigns (the “Mobile Marketing Services”).
Collectively the “Email Marketing Services” and the “Mobile
Marketing Services” will be referred to “the services” in this
document. The following are the terms and conditions for use
of the services by the person or persons accessing this web
site (“YOU”), or any other web site that has authorization to
sublicense or provide the Services, along with any amendments
thereto and any operating rules or policies that may be published
from time to time by EkoBuzz.
THE TERMS
AND SERVICES AGREEMENT (“AGREEMENT”) GOVERN THE FREE TRIAL OF
THE SERVICES. IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL
ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING
THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE
OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK 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 AUTORITY
TO BIND SUCH ENTITIY 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 THESE SERVICES.
PLEASE READ
THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND
CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB
SITE OR ANY OTHER AFFILIATED WEB SITE. BY USING THIS WEB SITE
OR ANY OTHER AFFILIATED WEB SITE, YOU INDICATE YOUR ACCEPTANCE
OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS
AND CONDITIONS, THEN DO NOT USE THIS WEB SITE OR ANY OTHER AFFILIATED
WEB SITE. EKOBUZZ MAY MAKE CHANGES TO THIS AGREEMENT FROM TIME
TO TIME AND CONTINUED USE OF THIS SERVICE CONSTITUTES YOUR ACCEPTANCE
OF ANY SUCH CHANGES. THE AGREEMENT INCLUDES OUR Privacy
Policy AND Anti-SPAM Policy
POSTED AT OUR WEBSITE www.ekobuzz.com
DESCRIPTION
OF SERVICE
The Services
provide corporate web sites, non-profit web sites, small business
web sites, and community sites the tools to sign up web site
visitors, collect and retrieve visitor sign-up data, develop
and execute simple interactive marketing communications with
visitors, track and report on such communication, deliver promotions
and alerts and collect customer responses from both the Internet
and the mobile device. The Services are offered in two editions:
1. Free
Edition
2. Paid
Edition
USE
OF SERVICES
1. You must
be at least 18 years of age and can form legally binding contracts
under applicable law.
2. If you
are using the Services as an employee on behalf of an employer,
you must have the authorization to bind your employer by your
use of the Services.
3. EkoBuzz
reserves the right to refuse service or to terminate accounts
for any user, and to change eligibility requirements at any
time, in its sole discretion
If you do
not qualify to use the Services, please do not use the Services.
• You must
complete a registration form or provide registration information
over the phone to an EkoBuzz marketing support personnel to
register you in order to use the Services. You will provide
true, accurate, current, and complete information as requested
in the registration form, and will update the information to
keep it current. As part of the registration process, you will
identify an email address and password for your EkoBuzz account.
You are responsible for maintaining the security of your account,
passwords, and files, for all uses of your account and of the
Services in your name. At its sole discretion, EkoBuzz reserves
the right to refuse registration of accounts, or cancel an existing
account, that it deems to be inappropriate.
• For every
email message sent or a mobile message launched in connection
with the Services, you acknowledge and agree that the Services
shall automatically add an identifying footer stating "Powered
by EkoBuzz" or a similar message.
• In using
the varied features of the Services, You might provide information
(such as name, contact information, or other registration information)
to EkoBuzz. EkoBuzz may use this information and any technical
information about your use of this web site to tailor its presentations
to you, facilitate your movement through this web site, or communicate
separately with you. EkoBuzz will not provide your information
to any entity that does not represent you.
• You hereby
agree to indemnify and hold harmless EkoBuzz and its business
partners, third party suppliers and providers, licensors, officers,
directors, employees, consultants, distributors and agents against
any damages, losses, liabilities, settlements, and expenses
(including without limitation costs and reasonable attorney's
fees) in connection with any claim or action that arises in
any way from (a) an alleged violation of the Agreement or (b)
your use of the Services. Although EkoBuzz has no obligation
to monitor the content provided by you or your use of the Services,
EkoBuzz may do so and may remove any such content or prohibit
any use of the Services it believes may be (or alleged to be)
in violation of the Agreement.
• You shall
not use the Services in any manner (including, without limitation,
the transmission of third party content or information) that
may violate or infringe upon any rights of a third party. You
shall be subject to the indemnification provisions in this Agreement
if your use of the Services violates or infringes upon such
rights.
• You shall be solely responsible for securely maintaining its
user name, password and other account information. EkoBuzz may
follow the instructions of any person who represents he or she
is authorized by you to use or make any changes to the account,
provided such person delivers the correct user name and account
information. EkoBuzz shall have no liability to you for any
unauthorized use of your account or the services provided hereunder.
• You represent,
covenant, and warrant that you will use the Services only in
compliance with EkoBuzz Privacy
Policy AND Anti-SPAM Policy
as published at www.ekobuzz.com or otherwise furnished to you
and all applicable laws (including but not limited to policies
and laws related to spamming, privacy, obscenity, or defamation
and child protective email address registry laws).
RESTRICTIONS
& RESPONSIBILITIES
• This is
an Agreement for Services, and EkoBuzz is not granting 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 the Services or any software,
documentation, or data related to the Services ("Software");
modify, translate, or create derivative works based on the Services
or any Software; or copy (except for archival purposes), distribute,
pledge, assign, or otherwise transfer or encumber rights to
the Services or any Software; use the Services or any Software
for timesharing or service bureau purposes or otherwise for
the benefit of a third party unless specifically authorized
by EkoBuzz; or remove any proprietary notices or labels.
Customer 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.
PERMISSION
LIST ONLY
• You may
not access or otherwise use third party mailing lists in connection
with preparing or distributing unsolicited email or sms messages
to any third party. You may only use permission based lists.
A permission based list is defined as a list in which each entity
on the list is a person or organization that has explicitly
granted their permission to receive emails, sms or other communications
from you. The agreement of a person or entity to participate
in a contest does not constitute a valid consent to receive
correspondence from you to such person or entity. For emails,
consent to receive correspondence from you shall be obtained
through an opt-in link contained within the body of the contest,
an opt-in form on your website or correspondence. For mobile
messages, consent to receive correspondence from you shall be
obtained through a short-code text message sent by the customer
with their consent. You are solely responsible for ensuring
that your email or mobile campaigns do not generate a number
of spam complaints in excess of industry norms. EkoBuzz may
terminate Customer's use of the Services if EkoBuzz determines
that the level of spam complaints is higher than industry norms
and its determination shall be final, binding and conclusive
for all purposes under this Agreement.
• Each email
or sms sent by you in connection with the Services shall contain
the EkoBuzz "unsubscribe" link for emails and an “unsubscribe”
short code for mobile messages that allows a recipient to remove
them from your list. You are prohibited from mailing to any
recipient who has clicked on the unsubscribe link. Failure to
comply with this requirement may result in a termination of
your account by EkoBuzz, and all payments previously paid to
EkoBuzz shall be forfeited by you at the time of termination.
TERMINATION
• You may
terminate this Agreement at any time by sending an email message
to support@ekobuzz.com.
• EkoBuzz
may terminate this Agreement or the Services at any time with
or without cause, and with or without notice. EkoBuzz shall
have no liability to you or any third party because of such
termination. Upon termination by either party, no payments from
you held by EkoBuzz shall be refunded at the time of termination
and you shall have no recourse against EkoBuzz in relation to
non-refunded funds, unused email credits or mobile credits remaining
(or time left) related to mobile or email subscriptions.
• Upon termination
for any or no reason, EkoBuzz 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, indemnity,
warranty disclaimers and limitations of liability.
• At any
time after the date of commencement of the Services by you,
if you have neither sent an email nor sent a mobile message
under a pay as you go pricing plan for more than thirty (30)
consecutive days, the account may become inactive. If you are
on a subscription pricing plan, it will be deemed to be inactive
when the end of their subscription period has lapsed and no
further payments are remitted to EkoBuzz to continue the Services.
When an account is classified (at Ekobuzz sole discretion) as
inactive, EkoBuzz will use reasonable efforts to notify Customer
by email. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR
THE ACCOUNT AND ITS DATA, INCLUDING SIGNUP CAMPAIGN RESULTS
AND SURVEY RESPONSES, MAY BE PERMANENTLY REMOVED FROM THE EKOBUZZ
DATABASE.
• If you
are on a pay as you go Plan you shall have twelve (12) months
from the date of purchase of email credits in which to use all
such email credits purchased. After twelve (12) months, all
unused email credits will automatically expire, and you shall
not be entitled to a refund of unused credits nor shall you
have the right to an extension of time in order to use such
unused credits.
PAYMENT
TERMS AND FREE TRIAL
• You shall
be entitled to use the Services on a trial basis or free for
a limited period as specified on the web site or a statement
of work when you initially agree to the use of the Services.
You shall have a finite time period to use the Services on a
trial basis. You shall not exceed set limits for free email
credits in the applicable month related to the Email Services
or free mobile credits in the applicable month related to the
Mobile Services. Once the trial period has expired, or the number
of free email credits has been depleted related to the Email
Services or Mobile Services, as applicable, you shall be subject
to the payment terms outlined in this section and shall pay
for the Services according to the email and mobile price list.
Unique subscribers contained in your account and the corresponding
pricing tier into which such number falls. A unique email address
or a unique mobile phone number stored by you shall be deemed
to be one (1) unique subscriber. EkoBuzz tier based pricing
allows for unlimited emails, provided that your total unique
subscribers are below 50,000 subscribers. If you have unique
subscribers above 50,000, you shall be subject to overage fees
determined by EkoBuzz if you send total emails in any one month
that is greater than four (4) times the number of maximum allowed
unique subscribers in Customer’s paid tier.
• You may
elect to switch from their original chosen pricing plan (either
the pay as you go Plan or the Email and Mobile Subscription
Plan) to the other pricing plan at any time. The Services must
be paid in advance prior to your usage of the Services. Access
to the Services shall be enabled once you remit payment. Access
to the Services shall be disabled should you become delinquent
in paying the monthly subscription fees if you are purchasing
the Services on a subscription pricing plan. If you are on a
monthly subscription plan, your credit card will be charged
on the first day of each subsequent month following the initial
month of subscription. If you are on a prepaid subscription
plan, the plan will automatically renew under the same term
as the previous plan and your credit card will be charged on
the first day following the expiration of the previous plan.
If EkoBuzz modifies its pricing structure, EkoBuzz will use
reasonable efforts to notify you prior to automatically renewing
a prepaid plan.
• The price
list for the Services is posted on our Web site at www.ekobuzz.com.
Prices may change at any time at Ekobuzz sole discretion. You
are responsible for understanding what current prices are in
effect at all times. EkoBuzz will use reasonable efforts to
notify you of any changes to the price list prior to such changes
taking effect.
• Payment
for Services shall be paid with any valid credit card that is
accepted by EkoBuzz. All payments shall be made in U.S. dollars.
You authorize EkoBuzz to keep your credit card or your bank
account information on file and charge such credit card or debit
such bank account for the continuing usage of existing Services
or the future usage of the Services. Your account will be disabled
if EkoBuzz is unable to charge your credit card for Services
rendered or future Services purchased. EkoBuzz will attempt
to notify you of our intent to suspend access to the Services
prior to such suspension taking effect.
PROHIBITED
CONTENT
• EkoBuzz
prohibits you from sending email or sms messages with content
that is of the following nature:
1. Messages that are in any way illegal such as sales of illegal
substances, solicitation of escort services, or sales of any
products or services that cannot be legally sold by you;
2. Pornographic
messages;
3. Grossly
offensive messages such as messages promoting hatred, bigotry,
intolerance of religious beliefs, racism or any other messages
that EkoBuzz, at its sole discretion, may deem to be offensive;
4. Includes
images that are not expressly authorized by either EkoBuzz or
the owner of such images;
5. Introduces
any computer viruses, worms or software code that is detrimental
to your recipients;
6. Any messages
that includes spam (See EkoBuzz anti-Spam Policy); or
7. Any messages
that are in any way prohibited by applicable law would constitute
a violation of applicable law or be inconsistent with community
standards in any jurisdiction in which the recipient resides.
• You may
upload images hosted by EkoBuzz into their email campaigns.
Any images hosted by EkoBuzz are only to be used in conjunction
with the Services and are subject to this agreement. You are
prohibited from using images within an email campaign to:
1. Sublicense,
distribute, transfer or assign any images in connection with
any other product except for a EkoBuzz email
2. Reverse
engineer, decompile, translate or dissemble any part of the
Images;
3. Remove
any copyright notices, trademarks or watermarks from any place
where it appears on the Images;
4. Use the
Images as part of another trademark, service mark or logo;
5. Use the
Images in any way that could be considered by a reasonable person
to be defamatory, pornographic, libelous, immoral, obscene or
fraudulent, or illegal, either by making physical changes to
them, in the juxtaposition to accompanying text or images or
otherwise;
6. Use the
Images in a manner that includes people as part of any sensitive
subject matter, which shall be determined by EkoBuzz in its
sole discretion. Example of sensitive subject matters include,
but are not limited to, mental and physical health issues, sexual
activity or preferences, substance abuse, guns and weapons,
crime, suicide, abortion, hate groups, political or religious
fanaticism, etc.
MISCELLENOUS
• If any
provision of this 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.
• Both parties
agree that this 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 this
Agreement, and that all waivers and modifications must be in
a writing signed by both parties, except as otherwise provided
herein.
• No agency,
partnership, joint venture, or employment is created as a result
of this Agreement, and Customer does not have any authority
of any kind to bind EkoBuzz in any respect whatsoever.
• In any
action or proceeding to enforce rights under this Agreement,
the prevailing party will be entitled to recover its costs and
attorney's fees, in addition to all other damages provided by
applicable law.
• This Agreement
shall be governed by the laws of the State of Delaware, USA
without regard to its conflict of law’s provisions. All legal
actions or claims in connection with this Agreement shall be
brought in the state or federal courts located in Wilmington,
Delaware, USA.
LIMITATION
OF LIABILITY
NOTWITHSTANDING
ANYTHING TO THE CONTRARY, EKOBUZZ AND ITS SUPPLIERS (INCLUDING
BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), DIRECTORS,
OFFICERS, AFFILIATES, INSURERS, REPRESENTATIVES, CONTRACTORS,
AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY
ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF EKOBUZZ HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING
ANYTHING TO THE CONTRARY, EXCEPT FOR FRAUD OR WILFUL MISCONDUCT,
EKOBUZZ'S AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIMS OF
ANY TYPE OR NATURE HEREUNDER SHALL NOT EXCEED IN THE AGGREGATE
THE AMOUNT PAID BY CUSTOMER TO EKOBUZZ DURING THE TWELVE MONTHS
PRIOR TO SUCH CLAIM.
INDEMNIFICATION
YOU AGREE
TO INDEMNIFY AND HOLD EKOBUZZ Inc., ITS PARENTS, SUBSIDIARIES,
AFFILIATES, OFFICERS, PARTNERS, CONSULTANTS, EMPLOYERS HARMLESS
FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY’S FEES,
and MADE BY THIRD PARTY DUE TO OR ARISING OUT OF THE USE OF
THE SERVICE. USE OF YOUR ACCOUNT BY ANY THIRD PARTY, THE VIOLATION
OF THE TERMS OF USE BY YOU, OR THE INFRINGEMENT BY YOU, OR ANY
THIRD PARTY USING YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY
OR OTHER RIGHT OF ANY PERSON OR ENTITY.
WARRANTY
DISCLAIMER
YOU WILL
USE THE SERVICES AT YOUR OWN RISK. EKOBUZZ 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 EKOBUZZ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
