Terms and Conditions

Effective Date: June 1st, 2010

Welcome to the EmailSynergy Platform website and service (collectively, the “Service”). Use of and access to the Service is subject to your compliance with these terms of use (the “Terms”), so please read these Terms carefully before using the Service. EmailSynergy Platform (“EmailSynergy Platform”, “we”, “us” or “our”) reserves the right to limit or terminate your access to the Service if you do not comply with these Terms.

By accessing and using the site in any way, you agree to be bound by these Terms. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS OF USE, DO NOT USE THE SERVICE IN ANY MANNER. If you are using the Service on behalf of your employer, you represent that you are authorized to accept these Terms on your employer’s behalf.

Changes in Terms of Use

We reserve the right to modify these Terms from time to time. If we modify these Terms, we will indicate that we have done so within the Service. Use of the Service constitutes your acceptance of any modified Terms.

About the Service

EmailSynergy Platform is a digital communications engine geared toward individuals and organizations to facilitate their email, announcement, and survey needs.

ANTI-SPAM POLICY

EmailSynergy Platform has a zero tolerance policy for “spam”, i.e., unsolicited e-mails that are sent to people who have not opted-in to the receipt of such e-mails or with whom you do not have a pre-existing business relationship. Anyone who uses the Service to send spam shall be subject to immediate suspension or termination from the Service, as determined by EmailSynergy Platform in our sole discretion.

You may not use the Service to:

Send e-mails to people who have not affirmatively agreed to receive such e-mails or people who have opted out or unsubscribed to your mailing lists;
Send e-mails unrelated to the purpose for which the consent was initially received;
Send e-mails with misleading or deceptive subjects;
Send e-mails with false or misleading header information (i.e., “to,” “from,” and routing information);
Send e-mails based on any lists you purchased or otherwise obtained from a third party, regardless of whether such third party obtained consent or not;
Create more than one account for yourself or for your business;
Harvest or otherwise gather email addresses;
Impersonate any other person, real or fictitious, or otherwise misrepresent yourself or your organization; or
Send e-mails or use the Service not in compliance with the CAN-SPAM Act or any other relevant privacy or consumer rules, regulations, or laws.

You are, and undertake all responsibilities associated therewith as, the sole and designated “sender” (as that term is defined in the CAN-SPAM Act of 2003 and in any regulations or associated rules adopted under such act) of any email message that you send using the Service.

You will comply with the CAN-SPAM Act of 2003, all regulations thereunder, and any other applicable state and local laws and regulations.

You will include your valid physical address, post office box, or private mailbox, in any email that you send using the Service.

You will not create any sort of incentive, such as a discounts, rewards, etc, that encourages a recipient of an email to forward the email to another recipient.

EmailSynergy Platform will include a working unsubscribe link in each email that you send using the Service. You will not tamper or otherwise manipulate this link. You agree that the unsubscribe link will remain active for 30 days after sending the email.

Should you receive any unsubscribe requests, you must comply with such requests and remove the requester’s email from the Service within 10 days after receiving the request.

You will maintain and honor a list of unsubscribe requests following termination of your User Account (defined below).

You will not use the Service to send email to any of the following: newsgroups, distribution lists, publicly available press or media addresses, or any other similar list or address.

For more information on the CAN-SPAM Act, visit the Federal Trade Commission’s website. http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm

If you are a user who has received a mailing from a EmailSynergy Platform customer but you did not opt-in to such mailing or you do not have a pre-existing business relationship with such party, you can contact our administrators at abuse@emailsynergy.com. Please provide the original e-mail. We will perform an internal inquiry into your allegations.

User Conduct and Responsibilities

You are responsible for obtaining access to the Service, which access may involve third party fees (such as Internet service provider, SMS or airtime charges). You are solely responsible for those fees. In addition, you must provide and are solely responsible for all equipment necessary to access the Service.

Your use of the Service is subject to all applicable local, state, national and international laws and regulations. Without limitation, you agree not to use the Service to make available and transmit any content that, or content that promotes a product or service that:

is illegal under or otherwise violates any local, state, national or international law or would constitute, encourage or provide instructions for a criminal offense;
violates the rights of any party (including without limitation rights of privacy and publicity);
is obscene, lewd, lascivious, violent, or otherwise objectionable;
victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
displays material that exploits children, or otherwise exploits children under 18 years of age;
is false or misleading;
infringes any copyright, patent, trademark, trade secret, or other proprietary rights of any party;
is unsolicited or unauthorized, including advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
includes private information of a third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
introduces viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or
in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose EmailSynergy Platform or its users to any harm or liability of any type.

You acknowledge that we may include an identifying footer at the bottom of each email message that states “Powered by EmailSynergy Platform” or another similar message. You will not tamper with or otherwise manipulate this identifying footer.

Through the Service EmailSynergy Platform will provide to you information regarding which of your intended email recipients opted-out of receiving communications from you. EmailSynergy Platform may receive additional information about the nature of email addresses to whom you attempt to send email (e.g. invalid address, etc). Except for the opt-out information provided to you, EmailSynergy Platform is under no obligation to provide any additional information to you that EmailSynergy Platform may acquire regarding your email addresses.

You acknowledge that EmailSynergy Platform may use third parties (“Third Party Providers”) in order to fulfill the Service.

Finally, you are solely responsible for the accuracy, quality, and security of your own data. EmailSynergy Platform is not responsible for your data, the loss of your data, or any consequences stemming therefrom.

User Information

If you wish to use the Service, you must register and create a user account (“User Account”). In submitting all such registration forms, you represent and warrant that the information contained therein is truthful and accurate and that you will update such information when it changes. Your provision of inaccurate or unreliable information will constitute a material breach of these Terms and be a basis for termination of your right to use the Service.

Login Credentials

During the registration process, you will specify a user name, valid email address, and a password (your “Login Credentials”). You are solely responsible in all respects for all use of (including any unauthorized use) of your Login Credentials, and for protecting the confidentiality of your password. You agree to notify EmailSynergy Platform immediately of any unauthorized use of your Login Credentials, your User Account and any other suspected breach of security regarding the Service. You are responsible for changing your password if you believe your password has been stolen or might otherwise be misused.

User Content

You are solely responsible for any content that you transmit, distribute, publish or display (hereinafter “distribute”) on or through the Service, transmit to or share with other users (“User Content”). EmailSynergy Platform reserves the right to modify or remove, at its sole discretion, any User Content. Although EmailSynergy Platform has no obligation to monitor User Content, EmailSynergy Platform may do so and may block or remove any such User Content or prohibit any use of the Service that Constant Contact believes may be (or is alleged to be) in violation of these Terms.

You represent and warrant that your User Content is free of libel or other unlawful material, including matter that may be construed as invasion of privacy, violation of a right of publicity, copyright, patent, or trademark infringement, and/or misappropriation of trade secret or any other right of a person or party. You also represent and warrant that all necessary licenses and consents have been obtained for the unrestricted use of your User Content on the Service.

EmailSynergy Platform does not claim any ownership rights in the User Content that you distribute through the Service. After posting User Content to the Service, you continue to retain any such rights that you may have in such User Content, subject to the limited license herein. By distributing User Content through the Service, you automatically grant, and you represent and warrant that you have the right to grant, to EmailSynergy Platform a limited, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Service. You also grant sufficient rights to EmailSynergy Platform to sublicense the foregoing rights to Third Party Providers solely as is necessary to perform the Service. If you choose to remove your User Content, the license granted above will automatically expire.

Professional Services.

EmailSynergy Platform offers, and you may purchase, additional services through EmailSynergy Platform. These services are distinct from the Service and are performed pursuant to separate specific terms as agreed upon between you and EmailSynergy Platform. In the event that EmailSynergy Platform does not provide additional terms for the additional services these Terms shall control.

Payment

Upon completion of your free trial period, EmailSynergy Platform will charge you a monthly fee based upon the EmailSynergy Platform fee schedule http://www.emailsynergy.com/public/pricing.aspx for your access or use of the Service. As discussed below, your monthly bill may fluctuate based upon your participation in the MarketShare program. You acknowledge and accept the following:

Paid fees are non-refundable;
Your obligation to pay for the Service is not affected by destination email servers that may block the delivery of email messages sent though the Service;
Your obligation to pay for the Service is not affected by the fact that EmailSynergy Platform may block distribution of email to certain recipients; and
EmailSynergy Platform may terminate or suspend your participation in the Service without liability to you if you do not make timely payments.

In order to create your User Account, you must provide a valid credit card that is acceptable to EmailSynergy Platform. You authorize EmailSynergy Platform to charge your credit card for your use of the Service. You are responsible for all fees accrued to your User Account until you terminate your User Account.

MarketShare

Should you decide to participate in the MarketShare program, you acknowledge and agree that EmailSynergy Platform may include advertisements for EmailSynergy Platform or other third parties in the email that you send through the Service. Through your participation in the MarketShare program you may accrue credits, the value of such credits being determinable at EmalSynergy Platform’s sole discretion, that may reduce the amount of fees that you owe EmailSynergy Platform for the Service.

Despite your participation in the MarketShare program and regardless of any advertising, third party or otherwise, that may be included in any email you send through the Service, you remain the sole and designated “sender” (as that term is defined in the CAN-SPAM Act of 2003 and in any regulations or associated rules adopted under such act) of any message sent through the Service.

Suspension, Termination

EmailSynergy Platform reserves the right, in its sole discretion, to reject, refuse to post or remove any User Content provided by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Service at any time, for any or no reason, with or without prior notice or explanation, and without liability. EmailSynergy Platform expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Service if EmailSynergy Platform determines, in its sole discretion, either that 1) you have violated these terms, or 2) such action would be in the best interest of EmailSynergy Platform.

Links to Other Websites and Content

The Service contains (or you may access through the Service) links to other web sites (“Third Party Services”) which may contain articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the “Third Party Content”). Such Third Party Services and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by EmailSynergy Platform and EmailSynergy Platform is not responsible for any Third Party Services accessed through the Service or any Third Party Content linked or posted through the Service. Inclusion of or linking to any Third Party Service or any Third Party Content does not imply approval or endorsement thereof by EmailSynergy Platform. If you decide to leave the Service and access the Third Party Services, you do so at your own risk and you should be aware that our terms and policies no longer govern.

Submissions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to EmailSynergy Platform are non-confidential and shall become the sole property of EmailSynergy Platform. EmailSynergy Platform shall own all right, title and interest, including all intellectual property rights, in Submissions, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

Privacy Policy

We care about the privacy of our users. Use of the Service is governed by our Privacy Policy. http://www.emailsynergy.com/public/privacy.aspx

Copyright Policy

Please refer to our Copyright Policy for information on how we conform to the Digital Millennium Copyright Act and our policies on copyrights and copyright complaints. SEE BELOW.

EmailSynergy Platform Service Content

All content on the Service, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement (the “Service Content”), is the proprietary property of EmailSynergy Platform, its users or its licensors with all rights reserved.

Except as provided in these Terms and with respect to your own User Content (as defined below) that you legally post on the Service, no Service Content may be modified, copied, distributed, framed, reproduced, republished, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without EmailSynergy Platform’s or the content provider’s explicit permission.

You are granted a limited license to access and use the Service and to download, upload, copy, and distribute Service Content, provided that you (a) keep all copyright or other proprietary notices intact; (b) use such content solely for personal and non-commercial use; (c) do not copy such content to or post such content on any networked computer or publish it in any medium, except as explicitly permitted by valid permission or license covering such materials; and (d) do not make any modifications to such content except as explicitly permitted by valid permission or license covering such materials. This license is revocable at any time as to any Service Content without notice and with or without cause.

Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.

Proprietary Rights

The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the Service or the collective work, and/or copying or reproducing the Service or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of EmailSynergy Platform. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service.

EmailSynergy Platform, EmailSynergy, ESP, MarketShare are trademarks of EmailSynergy Platform. All other trademarks are property of their respective companies. All trademarks and registered trademarks are protected by US and international trademark laws.

Modifications to Service

EmailSynergy Platform reserves the right to modify or terminate any or all portions of the Service with or without cause at any time and effective immediately. EmailSynergy Platform shall not be liable to you or any third party for termination. Should you object to any modifications to the Service or become dissatisfied with the Service in any way, your only recourse is to immediately discontinue use of the Service.

Notice

Except as set forth herein, all notices to a party shall be in writing and shall be made either via e-mail or conventional mail. EmailSynergy Platform may broadcast notices or messages through the Service to inform you of changes to these Terms, the Service, or other matters of importance. Such broadcasts shall constitute notice to you.

Disclaimers

EmailSynergy Platform is not responsible or liable in any manner for any User Content, Third Party Content or products or services offered through, linked to or posted on the Service. EmailSynergy Platform does not control and is not responsible for what users contribute to the Service and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be distributed through the Service. EmailSynergy Platform is not responsible for the conduct, whether online or offline, of any user of the Service.

The Service may be temporarily unavailable from time to time for maintenance or other reasons. EmailSynergy Platform assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications or User Content. Under no circumstances will EmailSynergy Platform be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Service, any User Content or Third Party Content linked to or posted on or through the Service, or any interactions between users of the Service, whether online or offline.

EmailSynergy Platform reserves the right to change any and all content contained in the Service or offered through the Service at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by EmailSynergy Platform.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

THE SERVICE, AND ALL CONTENT, USER CONTENT, THIRD-PARTY CONTENT, PRODUCTS AND SERVICES INCLUDED IN THE SITE ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. MASTER CRM DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
MASTER CRM MAKES NO WARRANTY OR REPRESENTATION REGARDING (i) ANY CONTENT, USER CONTENT, THIRD PARTY CONTENT, PRODUCT OR SERVICE OFFERED OR SOLD THROUGH BY ANY USER OR THIRD PARTY, (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, (iii) THE CURRENCY, ACCURACY, QUALITY, CONTENT, COMPLETENESS, LEGALITY, OPERABILITY, AVAILABILITY OR RELIABILITY OF ANY INFORMATION OR PRODUCTS OBTAINED THROUGH THE SERVICE, OR (iv) THE DELETION, FAILURE TO STORE, MIS-DELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION, PRODUCTS OR MATERIAL. MASTER CRM DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL MEET ANY OF YOUR REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR USE OF THE SITE OR YOUR USER CONTENT.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL MASTER CRM BE LIABLE TO YOU ON ACCOUNT OF (i) ANY USER CONTENT, (ii) YOUR USE OR MISUSE OF OR RELIANCE ON THE SERVICE, OR (iii) YOUR INABILITY TO USE THE SERVICE, OR THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES, AND THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA ARISING FROM ANY CLAIM RELATING TO THESE TERMS OR THE SUBJECT MATTER HEREOF WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MASTER CRM OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL THE LIABILITY OF MASTER CRM OR ITS OFFICERS, DIRECTORS, AND EMPLOYEES EXCEED $100. SUCH LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to you.

Indemnity

You agree to indemnify and hold EmailSynergy Platform, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, employees, and advertisers harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of your use of the Service, your conduct in connection with the Service, the User Content you provide, any Third Party Content you link to, post or share on or through the Service, any fines incurred under the federal CAN SPAM Act, 15 U.S.C. 7701-7713, or any violation of these Terms or of any law or the rights of any third party.

Miscellaneous

Waiver and Severability of Terms. The failure of EmailSynergy Platform to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by EmailSynergy Platform. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
Statute of Limitations. You and EmailSynergy Platform agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Some jurisdictions may prohibit the shortening of the time period in which a cause of action must be brought. In all such jurisdictions, the applicable time period shall be the minimum allowed by law.

Choice of Law and Forum. These Terms shall be governed by and construed in accordance with the laws of the State of Washington, excluding its conflict of law provisions. You and EmailSynergy Platform agree to submit to the exclusive jurisdiction of the state and federal courts of King County, Washington.

Arbitration. Any claim, dispute or controversy arising out of or in connection with or relating to these Terms or the breach or alleged breach thereof or your use of the Service shall be submitted by the parties to arbitration by the American Arbitration Association (“AAA”) in Seattle, Washington, United States of America under the AAA’s commercial rules then in effect. The foregoing notwithstanding, nothing in this paragraph shall be deemed as preventing EmailSynergy Platform from seeking relief from the courts as necessary to protect its intellectual property rights, and no decision of any arbitrator shall be binding in such event. The award rendered by the arbitrators shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and judgment on such award may be entered in any court having jurisdiction thereof.

COPYRIGHT POLICY

If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement is:

By mail:
EmailSynergy Platform
219 Main Street #646
Kirkland, WA 98033

By email at support@emailsynergy.com.

For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to EmailSynergy Platform at support@emailsynergy.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.

If you believe that content or a submission of yours that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content or submission, you may send a counter-notice containing the following information to the Copyright Agent:

Your physical or electronic signature;
Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in King County, Washington, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that the removed content may be replaced or no longer disabled in 10 business days.

Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.