SendSmart Software, Inc. Terms of Service and Use
Last Updated 8/2/2018
Welcome and thank you for your interest in SendSmart Software, Inc. (“SendSmart”) and our website located at http://www.sendsmart.com (“Site”). SendSmart is a communications platform that provides businesses access to tools to create, distribute and manage intelligent, multi-channel customer communications (“Tools”). These terms govern the use of any Tools SendSmart may make available either through the Site or through any other means such as mobile applications and APIs (collectively, the “Service”).
WARNING: UNDER SECTION 16 OF THESE TERMS OF SERVICE, IF YOU INTENTIONALLY VIOLATE ANY FEDERAL OR STATE LAWS GOVERNING THE CREATION AND/OR DISSEMINATION OF DIGITAL COMMUNICATIONS TO CONSUMERS, INCLUDING BUT NOT LIMITED TO VIOLATIONS OF THE TCPA OR THE CAN-SPAM ACT, OR YOU VIOLATE THE ANTI-SPAM POLICY CONTAINED IN SECTION 7, SENDSMART WILL BE ENTITLED TO COLLECT FROM YOU LIQUIDATED DAMAGES AS DESCRIBED IN SECTION 16.
2. Accessing the Site.
A. Eligibility. You must be an individual at least 13 years old to use the Site and must not have previously been removed or suspended from the Site for any reason. Further, by using or registering for the Site, you agree to abide by and comply with these Terms, and you acknowledge that you are accepting the benefit of the Site, subject to these Terms.
B. Access. SendSmart grants you permission to access and use the Site as set forth in these Terms and consistent with the intended features of the Site, provided that: (i) you use the Site solely for the purpose contemplated in these Terms; (ii) you do not reproduce, modify, publicly display, publicly perform, or distribute any part of the Site, including any materials obtained from or included within the Site; and (iii) you do not engage in any of the prohibited uses described below.
3. Account Information & Responsibilities Of Registered Users.
A. Account Information. In order to access some features of the Site, you must create an account. You hereby represent and warrant that the information you provide to SendSmart upon registration and at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
B. Password. As a registered User, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any unaffiliated third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by an unauthorized third party, you agree to immediately notify SendSmart by e-mail. You are solely responsible for your own losses or losses incurred by SendSmart and others (including other users) due to any unauthorized use of your account.
4. Ownership; Proprietary Rights. The Site is owned and operated by SendSmart. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), and all other elements of the Site provided by SendSmart ("Site Content") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Site Content is the copyrighted property of SendSmart or its subsidiaries or affiliated companies and/or third parties, except for Message Content (as defined below), to which you retain your copyrights. All trademarks, Site marks, and trade names are proprietary to SendSmart or its affiliates and/or third parties. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Site Content, and nothing herein shall be interpreted to grant you any right or license under any intellectual property rights of SendSmart or any third party.
5. Message Content and Intellectual Property.
A. General. SendSmart may allow you and other users to upload, archive, and disseminate content such as text, photos, audio, video and other media content to the Site in connection with your Messages (“Message Content”). You retain all your rights in Message Content, but if you choose to provide any Message Content to SendSmart, we require a license to such Message Content.
B. License Grant by You to SendSmart. By providing Message Content to SendSmart you hereby grant SendSmart and its affiliates, sublicensees, partners, designees and assignees (collectively, the “SendSmart Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, transferable, worldwide license, without obligation, to use, reproduce, distribute, modify, adapt, publicly display, publicly perform, and otherwise exploit your Message Content and derivatives thereof in connection with providing you the Service.
C. Message Content Representations and Warranties. You are solely responsible for your own Message Content and the consequences of uploading, archiving or disseminating it. In connection with Message Content, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize SendSmart and the SendSmart Licensee’s to use all patent, trademark, copyright, or other proprietary rights in and to any and all Message Content to enable the use of Message Content in the manner contemplated by these Terms, and to grant the rights and license set forth herein, and (ii) your Message Content, SendSmart’s or any SendSmart Licensee’s use of such Message Content pursuant to these Terms, and SendSmart’s or any SendSmart Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity of any other person; (c) violate any applicable law or regulation, or constitute any false or misleading advertising or unfair business practice; or (d) require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms.
6. Confidential Information. SendSmart and you (each a “Party,” collectively “Parties”) shall keep confidential and not disclose to any third party or use for its own benefit, except as expressly provided in these Terms, any non-public information provided to it by the other Party whether disclosed in writing or verbally (“Confidential Information”). The receiving Party agrees that it will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that it would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care. No violation of this section shall occur by reason of a disclosure of Confidential Information in response to a valid order by a court or other governmental body, provided that the Party subject to such order provides the other Party with commercially reasonable prior written notice of such disclosure to permit the other Party to seek confidential treatment of such information.
7. Anti-Spam and Abuse Policy.
A. General. You may use the Service only to send discrete voice, text or e-mail communications (“Message” or “Messages”) and series of such communications over time (“Campaign” or “Campaigns”) to any individual or entity (“Contact”) that meets the requirements of either Section 7(B) or Section 7(C) below. Under no circumstance may you use the Service to send Messages or Campaigns to Contacts derived from any purchased, rented, or third party lists of e-mail addresses or phone numbers. You acknowledge and agree that if SendSmart receives an unusual number of complaints, as determined in SendSmart’s sole discretion, that you have sent unwanted Messages (“SPAM”) to any Contact(s), SendSmart may block any outgoing Messages and Campaigns associated with your account, terminate your access to the Service and/or claim liquidated damages as described in Section 16.
B. Consenting Contact. You may send Messages to a “Consenting Contact,” where Consenting Contact is defined as a person or entity who has given you permission to send Messages to him, her, or it, without subsequently withdrawing such permission and either (i) gave you the permission within the prior 12 months; or (ii) gave you permission prior to the previous 12 months and you sent him, her, or it a Message, which was not objected to within the prior 12 months.
C. Interested Contact. You may send Messages via the Service to an “Interested Contact” where Interested Contact is defined as a person or entity who provided you with his, her, or its name and contact information in connection with the purchase or negotiations to purchase, a product or service from you, has not opted out from receiving your Messages and either (i) such sale or negotiations occurred within the previous 12 months; or (ii) such sale or negotiations occurred more than 12 months earlier and you sent him, her, or it a Message, which was not objected to, within the prior 12 months.
D. Mobile Phone Restrictions. Notwithstanding Sections 7(B) and 7(C), any Contact that has not explicitly agreed to be contacted by you by mobile phone will not be deemed a Consenting Contact or an Interested Contact for the purpose of sending phone-based Messages (i.e. SMS, voicemail, or direct dialed calls) through the Service, even if the Contact has otherwise consented to receiving e-mails or other targeted communications from you.
E. Service Interruptions. If any of your messages are identified as SPAM by any of SendSmart’s third party service providers regardless of whether such claims are with or without merit, your Messages may be blocked without notice by such third party service providers. SendSmart has no control over the delivery of your Messages in the event your Messages are blocked by a third party service provider. You are solely responsible for resolving any disputes between yourself and the third party provider regarding such claims.
F. Feedback from Recipients. When a Contact indicates that a Message they received from you is SPAM, either explicitly by clicking a “This is SPAM” link included in the Message, or implicitly by engaging in online behavior that SendSmart has found to be indicative of Contacts who have received SPAM, a feedback report is generated and sent to SendSmart. Upon receiving the feedback report SendSmart will remove the Contact from your Contact list.
8. Bandwidth Abuse. You may not use bandwidth provided in connection with the Service for anything other than creating, distributing and replying to Messages and Campaigns through the Service. You agree not to host electronic images on the Service for any other purpose besides the use of the image in your Message or Campaign, including but not limited to, use on external websites. You further agree that any Message or Campaign created using the Service will be sent, if sent at all, through the Service. Any violation of the terms of this Section 8 may result in the termination of your account and/or the deletion of any image(s) and website link(s) associated with your Messages and Campaigns.
9. Fees and Payment.
A. General. You may be required to pay a fee (“Fee” or “Fees”) to access certain features of the Service. For a current schedule of Fees please go here. SendSmart may change the Fees at any time at its sole discretion. SendSmart will use reasonable efforts to notify you of any Fee changes prior to the changes taking effect, however you are solely responsible for understanding what Fees are in effect at all times.
B. Monthly Plans. You agree to pay the Fees associated with your use of the Service on a monthly basis (“Monthly Plan”). The Fees associated with the Monthly Plan are divided into different pricing tiers (“Tier”). If you select a Monthly Plan your credit card will be charged the Fee that corresponds with the Tier that you selected on a thirty (30) day recurring basis (“Billing Period”). Each billing charge is for the previous 30 days.
C. Additional Payment Policies. BY USING A CREDIT CARD TO PAY THE FEES ASSOCIATED WITH SERVICE, YOU ARE AUTHORIZING SENDSMART TO KEEP YOUR CREDIT CARD INFORMATION ON FILE AND CHARGE SUCH CREDIT CARD FOR YOUR CONTINUING AND/OR FUTURE USAGE OF THE SERVICE UNTIL SUCH TIME AS YOU OR SENDSMART TERMINATE YOUR ACCOUNT. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO USE SUCH CREDIT CARD AND THAT ANY AND ALL CHARGES BILLED TO SUCH CREDIT CARD BY SENDSMART WILL NOT BE REJECTED. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN YOUR ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO ENSURING YOUR ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT YOUR FAILURE TO DO SO, MAY RESULT IN THE INTERRUPTION OR LOSS OF SERVICES, AND SENDSMART SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
D. You are opting into payment alert SMS messages when payment is due. You assume full responsibility for entering and maintaining accurate and up to date SMS information for all of your users.
10. Monitoring Message Content; Removal of Content. SendSmart may choose, in its sole discretion, to monitor, review, or otherwise access some or all Message Content, but by doing so SendSmart nonetheless assumes no responsibility for the Message Content. You acknowledge that SendSmart may or may not pre-screen Message Content, but that SendSmart and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Message Content that is available via the Site. Without limiting the foregoing, SendSmart and its designees may, at any time and without prior notice, remove any Message Content, whether or not such Message Content has been previously incorporated into a Message or Campaign that in the sole judgment of SendSmart violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind.
11. Digital Millennium Copyright Act Compliance
A. General. SendSmart respects the rights of copyright owners and expects its users to do the same. Therefore, as required by the Terms, infringing content may not be submitted to the Site or used in, whole or in part, in any Message Content.
B. Message Content. If you upload Message Content that contains any copyrighted work, including literary works, visual works, musical works, sound recordings, audiovisual works, or other work or any combination of the foregoing, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Site and grant the rights granted herein. In addition to being grounds for removal of your Message Content, termination of your account, and any other remedy SendSmart may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
C. Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Site infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing SendSmart’s Designated
Copyright Agent with the following information in writing:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works on the Site;
(iii) 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 SendSmart to locate the material;
(iv) information reasonably sufficient to permit SendSmart to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) a statement that the complaining party has 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 (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”).
Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is SendSmart’s policy to respond to notices of alleged infringement that comply with the DMCA. In addition, SendSmart will promptly terminate without notice the accounts of Users that are determined by SendSmart to be “repeat infringers.” If SendSmart receives more than three takedown notices regarding a User’s Message Content, then that User will be considered a repeat infringer and their account will be terminated.
D. Designated Agent. SendSmart’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: DMCA Copyright Agent, SendSmart, Inc., P.O. Box 4281, Portland, OR 97208, or by electronic mail at email@example.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to SendSmart customer Site through firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
12. Compliance with International Laws. The Service is hosted in the United States and is primarily intended for disseminating Messages to Contacts located within the United States. If you choose to use the Service to send Messages to the European Union or other regions of the world, your use and collection of Contact’s personal data through the Service may be subject to laws that differ from U.S. law. You represent and warrant that in compiling your Contact list you will not intentionally include any Contacts that reside or are located outside the United States, without first requesting SendSmart’s consent. You may request consent by sending an e-mail to email@example.com the purpose of your Campaign and the nature of your relationship with the Contacts. Regardless of whether you obtain SendSmart’s approval to send Messages to Contacts located outside the United States, you agree to indemnify and hold SendSmart harmless from any losses, including attorney fees, resulting from your violation of any foreign laws, rules or regulations. SendSmart reserves the right to terminate any Campaign, refuse to send any Message, and/or delete any Contacts that it believes to be in violation of this Section 12.
13. Prohibited Uses Of the Service. You agree not to use the Service or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not, do or attempt to:
A. Utilize the Service to create or distribute any Messages or Campaigns that are intended to promote a prohibited industry as contained in SendSmart’s Prohibited Industry List [prohibited list].
B. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, or features that enforce limitations on the use of the Site or any content therein;
C. Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
D. Create or distribute any Messages or Campaigns containing inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
E. Create a false identity or impersonate another for the purpose of misleading others, including Contacts, as to the identity of the sender or the origin of a Message;
F. Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
G. Interfere with or disrupt the Site, networks or servers connected to the Site, or violate the regulations, policies or procedures of such networks or servers;
H. Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of the Site, Site Content, or Message Content, or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any part of the Service other than as intended;
I. Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your Message Content;
J. Use the Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
A. By SendSmart. SendSmart, in its sole discretion and for any reason or no reason, may terminate your account on the Site, disable your access to the Site (or any part thereof), discontinue the Site and any related sites, or terminate any license or permission granted to you hereunder, at any time, with or without notice. You agree that SendSmart shall not be liable to you or any third-party for any such termination. Without limiting the generality of the foregoing, SendSmart may terminate your account in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations, and any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies SendSmart may have at law or in equity. Any liability protection of any kind assumed by Sendmart is immediately revoked upon the receipt of cancellation notice.
15. Indemnity. You agree to indemnify and hold harmless SendSmart and its directors, officers, employees, agents, representatives, and contractors, and other SendSmart users who use any Message Content you upload to the Site or other users, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Site; (ii) your Message Content; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of any applicable state or federal law or regulation; (v) your violation of the rights of any other person or entity, including, but not limited to claims that any Message Content infringes or violates any third party intellectual property rights. SendSmart reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You may not settle any matter without the prior written consent from SendSmart.
16. Liquidated Damages. Certain breaches of these Terms of Service as described below (“Abusive Conduct”) not only harm SendSmart, but harm the interests of all other users of the Service. If you engage in Abusive Conduct, SendSmart’s third party service providers may block the entire Service, not just the Messages and Campaigns associated with your account. Thus your Abusive Conduct could effectively force a shut-down of the Service until such time as SendSmart could negotiate a restoration of the third-party services or identify an alternative third-party service provider. Since the nature of the harm resulting from Abusive Conduct is impossible to predict in advance, you agree that SendSmart may recover liquidated damages, in lieu of any other damages that may have been recoverable for Abusive Conduct in the amounts set forth below.
Abusive Conduct Liquidated Damages
Violation of Section 7 – Including, but not limited to, using the Service to send Messages to any Contact that does NOT meet the requirements of either Section 7(B) or Section 7(C) and using the Service to send Messages or Campaigns to Contacts derived from any purchased, rented, or third party lists $900
Violation of Section 12 – Using the Service to intentionally send Messages or Campaigns to Contacts located outside the United States without first obtaining SendSmart’s express permission $900
Violation of Section 13 – Engaging in any of the prohibited uses laid out in Section 13, including using the Service to send Messages or Campaigns that promote a prohibited industry as described in Section 13(A) $900
17. Disclaimers. THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE SITE, THE SITE CONTENT, OR ANY OTHER PRODUCT, SITE OR INFORMATION PROVIDED BY SENDSMART), MESSAGE CONTENT, AND ANY OTHER SOFTWARE, SITES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SENDSMART HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, WITH RESPECT TO THE SERVICES PROVIDED BY SENDSMART.
18. Limitation of Liability. IN NO EVENT WILL SENDSMART, ITS OFFICERS OR DIRECTORS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICE; (II) YOUR INABILITY TO USE OR ACCESS THE SERVICE OR ANY MESSAGE CONTENT; OR (III) ANY INFORMATION ACQUIRED THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, (A) ANY FEES OR COSTS RESULTING FROM MISINFORMATION OR FAILURES IN COMMUNICATION; AND (B) ANY ACCIDENTS OR UNEXPECTED EVENTS, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF SENDSMART IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SENDSMART, ITS OFFICERS OR DIRECTORS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED GREATER THAN THE AMOUNT OF FEES YOU PAID TO SENDSMART IN THE SIX (6) MONTHS PRIOR TO THE CLAIM.
19. Limitations; Basis of the Bargain. APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SENDSMART, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SENDSMART, SENDSMART’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT SENDSMART WOULD NOT BE ABLE TO OFFER THE SITE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
20. Dispute Resolution and Arbitration. A. Generally. In the interest of resolving disputes between you and SendSmart in the most expedient and cost effective manner, you and SendSmart agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and SendSmart are each waiving the right to a trial by jury or to participate in a class action.B. Exceptions. Notwithstanding subsection (A), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims. C. Arbitrator. Any arbitration between you and SendSmart will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting SendSmart.D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). SendSmart's address for Notice is: SendSmart, Inc., P.O. Box 4281, Portland, OR 97208. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or SendSmart may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or SendSmart shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, SendSmart shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by SendSmart in settlement of the dispute prior to the arbitrator’s award.E. Fees. In the event that you commence arbitration in accordance with these Terms, SendSmart will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, CA, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse SendSmart for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.F. Enforceability. If only Subsection F of this Section 20 or the entirety of this Section 20 is found to be unenforceable, then the entirety of this section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 22 shall govern any action arising out of or related to these Terms.
21. Notices. SendSmart may provide you with notices by electronic mail, regular mail or postings on the Site. If notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless SendSmart is notified that the electronic mail address is invalid. If notice is provided by posting through the Site, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Site. In such case, notice will be deemed given three days after the date of mailing.
22. Case Study, Reference and Sales Materials License Grant by You to SendSmart. By using SendSmart's services you hereby grant SendSmart Software Software Inc. and its affiliates, sublicensees, partners, designees and assignees (collectively, the “SendSmart Licensees”) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, transferable, worldwide license, without obligation, to use, reproduce, distribute, modify, adapt, publicly display, publicly perform, and otherwise exploit your Message Content, usage cases and derivatives thereof in connection with providing case studies, references and sales materials. As a user you both agree and affirm you have the authority to grant SendSmart Software Inc. these rights as well as the indefinite right to use your name, your company name, brand and/or the brand of any/all parent companies, subsidiaries, OEM's and/or partners referenced in case studies and/or sales materials unless otherwise mutually agreed to in writing.
23. Miscellaneous. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of Oregon without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and SendSmart agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Portland, Oregon for the purpose of litigating all such claims or disputes. This is the entire agreement between you and SendSmart relating to the subject matter herein, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and SendSmart with respect to said subject matter. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed, and the remaining provisions thereof shall remain in full force and effect. The failure of SendSmart to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the prior or future performance of any such terms or conditions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and SendSmart as a result of these Terms or use of the Site.
You further acknowledge that by submitting Message Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and SendSmart other than pursuant to these Terms. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SendSmart without restriction, including by operation of law, merger, or sale of all or substantially all of the assets to which this agreement pertains. Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in this Agreement are used for convenience only and are not to be considered in interpreting this Agreement.
The Sites hereunder are offered by:
SendSmart Software, Inc.
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.
This Policy describes the information that we gather from you on the Service, how we use and disclose such information, and the steps we take to protect such information. By using the Service, you consent to the privacy practices described in this Policy.
This Policy is incorporated into and is subject to the SendSmart Terms of Service. Capitalized terms used but not defined in this Policy have the meaning given to them in the SendSmart Terms of Service.
The information we collect on the Service:
• User-provided Information. When you use the Service, you may provide and we may collect what is generally called “personally identifiable” information, or “personal information,” which is information that specifically identifies an individual. Examples of personal information include name, email address, mailing address, mobile phone number, and credit card or other billing information. Personal information also includes other information, such as date of birth, geographic area, or preferences, when any such information is linked to information that identifies a specific individual. You may provide us with personal information in various ways on the Service. For example, you provide us with personal information when you register for an account, use the Service, upload Message Content, make a purchase on the Service, or send us customer service-related requests.
• “Cookies" Information. When you use the Service, we may send one or more cookies – small text files containing a string of alphanumeric characters – to your device. We may use both session cookies and persistent cookies. A session cookie disappears after you close your browser. A persistent cookie remains after you close your browser and may be used by your browser on subsequent visits to the Service. Please review your web browser “Help" file to learn the proper way to modify your cookie settings. Please note that if you delete, or choose not to accept, cookies from the Service, you may not be able to utilize the features of the Service to their fullest potential.
• “Automatically Collected" Information. When you use the Service, we may automatically record certain information from your device by using various types of technology, including “clear gifs" or “web beacons.” This “automatically collected" information may include your IP address or other device address or ID, web browser and/or device type, the web pages or sites that you visit just before or just after you use the Service, the pages or other content you view or otherwise interact with on the Service, and the dates and times that you visit, access, or use the Service. We also may use these technologies to collect information regarding your interaction with email messages, such as whether you opened, clicked on, or forwarded a message. This information is gathered from all users.
• Third Party Web Beacons. We may also implement third-party content or advertising on the Service that may use clear gifs or other forms of web beacons, which allow the third-party content provider to read and write cookies to your browser in connection with your viewing of the third party content on the Service. Information collected through web beacons is collected directly by these third parties, and SendSmart does not participate in that data transmission. Information collected by a third party in this manner is subject to that third party’s own data collection, use, and disclosure policies.
• Information from Other Sources. We may obtain information, including personal information, from third parties and sources other than the Service. If we combine or associate information from other sources with personal information that we collect through the Service, we will treat the combined information as personal information in accordance with this Policy.
How we use the information we collect. We use information we collect on the Service in a variety of ways in providing the Service and operating our business, including the following:
• We use the information that we collect on the Service to operate, maintain, enhance and provide all features of the Service, to provide services and information that you request, to respond to comments and questions and otherwise to provide support to users of the Service.
• We use the information that we collect on the Service to understand and analyze the usage trends and preferences of our users, to improve the Service, and to develop new products, services, feature, and functionality.
• We may use your email address or other information we collect on the Service (i) to contact you for administrative purposes such as customer service, to address intellectual property infringement, right of privacy violations or defamation issues related to your Message Content uploaded or distributed through the Service or (ii) to send communications, including updates on promotions and events, relating to products and services offered by us and by third parties we work with. Generally, you have the ability to opt-out of receiving any promotional communications as described below under “Your Choices.”
• We may use “cookies” information and “automatically collected” information we collect on the Service to: (i) personalize our services, such as remembering your information so that you will not have to re-enter it during your visit or the next time you visit the Service; (ii) provide customized content, and information; (iii) monitor and analyze the effectiveness of Service and third-party marketing activities; (iv) monitor aggregate site usage metrics such as total number of visitors and pages viewed; and (v) track your activities on the Service.
When we disclose information. Except as described in this Policy, we will not disclose your information that we collect on the Service to third parties without your consent. We may disclose information to third parties if you consent to us doing so, as well as in the following circumstances:
• Any information that you voluntarily choose to include in a publicly accessible area of the Service, such as a help forum , will be available to anyone who has access to that content, including other users.
• We work with third party service providers to provide website, application development, hosting, maintenance, and other services for us. These third parties may have access to or process your information as part of providing those services for us. Generally, we limit the information provided to these service providers to that which is reasonably necessary for them to perform their functions, and we require them to agree to maintain the confidentiality of such information.
• We may make certain automatically-collected, aggregated, or otherwise non-personally-identifiable information available to third parties for various purposes, including (i) compliance with various reporting obligations; (ii) for business or marketing purposes; or (iii) to assist such parties in understanding our users’ interests, habits, and usage patterns for certain programs, content, services, promotions, and/or functionality available through the Service.
• We may disclose your information if required to do so by law or in the good-faith belief that such action is necessary to comply with state and federal laws (such as U.S. copyright law), in response to a court order, judicial or other government subpoena or warrant, or to otherwise cooperate with law enforcement or other governmental agencies.
• We also reserve the right to disclose your information that we believe, in good faith, is appropriate or necessary to (i) take precautions against liability, (ii) protect ourselves or others from fraudulent, abusive, or unlawful uses or activity, (iii) investigate and defend ourselves against any third-party claims or allegations, (iv) protect the security or integrity of the Service and any facilities or equipment used to make the Service available, or (v) protect our property or other legal rights (including, but not limited to, enforcement of our agreements), or the rights, property, or safety of others.
• Information about our users, including personal information, may be disclosed and otherwise transferred to an acquirer, or successor or assignee as part of any merger, acquisition, debt financing, sale of assets, or similar transaction, as well as in the event of an insolvency, bankruptcy, or receivership in which information is transferred to one or more third parties as one of our business assets.
You may, of course, decline to share certain personal information with us, in which case we may not be able to provide to you some of the features and functionality of the Service. You may update, correct, or delete your account information and preferences at any time by accessing your account preferences page on the Service. If you wish to access or amend any other personal information we hold about you, or to request that we delete any information about you that we have obtained from a third party, you may contact us at firstname.lastname@example.org. Please note that while any changes you make will be reflected in active user databases instantly or within a reasonable period of time, we may retain all information you submit for backups, archiving, prevention of fraud and abuse, analytics, satisfaction of legal obligations, or where we otherwise reasonably believe that we have a legitimate reason to do so.
If you receive commercial email from us, you may unsubscribe at any time by following the instructions contained within the email. You may also opt-out from receiving commercial email from us, and any other promotional communications that we may send to you from time to time, by sending your request to us by email at email@example.com or by writing to us at the address given at the end of this policy. We may allow you to view and modify settings relating to the nature and frequency of promotional communications that you receive from us in user account functionality on the Service.
Please be aware that if you opt-out of receiving commercial email from us or otherwise modify the nature or frequency of promotional communications you receive from us, it may take up to ten business days for us to process your request, and you may receive promotional communications from us that you have opted-out from during that period. Additionally, even after you opt-out from receiving commercial messages from us, you will continue to receive administrative messages from us regarding the Service.
The Service may contain features or links to Web sites and services provided by third parties. Any information you provide on third-party sites or services is provided directly to the operators of such services and is subject to those operators’ policies, if any, governing privacy and security, even if accessed through the Service. We are not responsible for the content or privacy and security practices and policies of third-party sites or services to which links or access are provided through the Service. We encourage you to learn about third parties’ privacy and security policies before providing them with information.
Protecting the privacy of young children is especially important. Our Service is not directed to children under the age of 13, and we do not knowingly collect personal information from children under the age of 13 without obtaining parental consent. If you are under 13 years of age, then please do not use or access the Service at any time or in any manner. If we learn that personally identifiable information has been collected on the Service from persons under 13 years of age and without verifiable parental consent, then we will take the appropriate steps to delete this information. If you are a parent or guardian and discover that your child under 13 years of age has obtained an account on the Service, then you may alert us at firstname.lastname@example.org and request that we delete that child’s personally identifiable information from our systems.
We use certain physical, managerial, and technical safeguards that are designed to improve the integrity and security of your personally identifiable information. We cannot, however, ensure or warrant the security of any information you transmit to us or store on the Service, and you do so at your own risk. We also cannot guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.
If we learn of a security systems breach, then we may attempt to notify you electronically so that you can take appropriate protective steps. We may post a notice through the Service if a security breach occurs. Depending on where you live, you may have a legal right to receive notice of a security breach in writing. To receive a free written notice of a security breach you should notify us at privacy at sendsmart.com.
Although we may allow you to adjust your privacy settings to limit access to certain personal information, please be aware that no security measures are perfect or impenetrable. We are not responsible for circumvention of any privacy settings or security measures on the Service. Additionally, we cannot control the actions of other users with whom you may choose to share your information. Further, even after information posted on the Service is removed, caching and archiving services may have saved that information, and other users or third parties may have copied or stored the information available on the Service. We cannot and do not guarantee that information you post on or transmit to the Service will not be viewed by unauthorized persons.
The Service is hosted in the United States and is intended exclusively for visitors and users located within the United States. If you choose to use the Service from the European Union or other regions of the world with laws governing communication, data collection and use that may differ from U.S. law, then please note that you are transferring your personal information outside of those regions to the United States for storage and processing. Also, we may transfer your data from the U.S. to other countries or regions in connection with storage and processing of data, fulfilling your requests, and operating the Service. By providing any information, including personal information, on or to the Service, you consent to such transfer, storage, and processing.
Changes and Updates to this Policy
Please revisit this page periodically to stay aware of any changes to this Policy, which we may update from time to time. If we modify the Policy, we will make it available through the Service, and indicate the date of the latest revision. In the event that the modifications materially alter your rights or obligations hereunder, we will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. Your continued use of the Service after the revised Policy has become effective indicates that you have read, understood and agreed to the current version of the Policy.
Our Contact Information
Please contact us with any questions or comments about this Policy, your personal information, our use and disclosure practices, or your consent choices by email at privacy at sendsmart.com.
SendSmart Software, Inc.
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