By contracting with Visionamics, Inc. ("Happy Birthday Advertising"), you (the “Customer”) hereby agree to the following:
1. Can-Spam Compliance Acknowledgment. Pursuant to the CAN-SPAM Act of 2003, the Customer agrees that the Customer will ensure that the "From" line at the time of delivery of the interactive email advertisement will be accurate in all particulars and clearly identify the person or business who initiated the message.
2. Restricted Transmissions. Happy Birthday Advertising prohibits, and may postpone, cancel or otherwise return to you advertisements that violate the Happy Birthday Advertising Restricted Transmission Policy, including but not limited to advertisements and other mass communications of the following nature, all and any of such prohibitions you as the Customer hereby represent and warrant that you will comply with at all times:
(a) Selling or offering to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software, escort services, illegal goods, illegal drugs, illegal drug contraband, pirated computer programs, instructions on how to assemble or otherwise make bombs, grenades or other weapons.
(b) Displaying or marketing material that exploits children under 18 years of age.
(c) Selling or offering products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management (including but not limited to credit repair and debt relief offerings, stock and trading tips, and mortgage finance offers), DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services (including but not limited to poker, casino games, horse and dog racing and college and pro sporting events).
(d) Providing material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or that includes any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
(e) Posting or disclosing any personally identifying information or private information about children.
(f) Selling or promoting any products, information, or services that are unlawful in the location at which the content is posted or received.
(g) Introducing viruses, worms, harmful code, spyware, key-loggers, and/or Trojan horses on the Internet.
(h) Promoting, soliciting or participating in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
(i) Engaging in any libelous, defamatory, scandalous, threatening, harassing activity.
(j) Posting any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
(k) Providing or displaying content, including but not limited to images, of authors, artists, photographers or others without the express written consent of the content owner and/or copyright holder.
(l) Any such other advertisements or other content that Happy Birthday Advertising determines inappropriate within its sole discretion.
3. Rights of Re-Use and Grant of License. As further consideration to employing Happy Birthday Advertising to provide the email marketing services, the Customer hereby authorizes Happy Birthday Advertising to republish the advertisement(s) mailed on the Customer’s behalf following the emailing of said advertisement solely for Happy Birthday Advertising's promotional purposes, and accordingly the Customer hereby grants to Happy Birthday Advertising a fully paid license in perpetuity to republish advertisements emailed using the Happy Birthday Advertising platform solely for Happy Birthday Advertising's promotional purposes. For the purposes of this paragraph, “advertisement” shall mean the original advertisement mailed on the Customer’s behalf, and any part thereof, including any edited or altered versions of the original advertisement.
4. Warranties. Happy Birthday Advertising hereby disclaims all express and/or implied warranties, including but not limited to implied warranties of merchantability or fitness for a particular purpose; provided, however, that notwithstanding the disclaimer of warranties herein Happy Birthday Advertising does hereby warrant that in the provision of the services contemplated herein that Happy Birthday Advertising complies with all laws and regulations promulgated by the United States. The Customer hereby warrants that it has reviewed and approved of its advertisement in all particulars prior to being deployed, and that such advertisement does not violate in any capacity the laws and regulations of the United States, including but not limited to the Federal Trade Commission’s Truth In Advertising, Truth In Lending, and Truth in Leasing regulations, or the laws of any individual State wherein it is mailed.
5. Limitation of Liability. Except with respect to the indemnification obligations detailed in paragraph 6 below, (i) each Party's maximum liability under this Agreement shall be limited to the amount of Fees paid to Happy Birthday Advertising under this Agreement; and (ii) neither Party shall be liable to the other for any indirect, incidental, consequential, or special damages (including but not limited to damages to business reputation, lost business, or lost profits), whether foreseeable and however caused, even if advised of the possibility of such damages.
6. Indemnification.
(a) Happy Birthday Advertising shall protect, indemnify, hold harmless, and defend Customer for claims arising pursuant to a breach by Happy Birthday Advertising of (i) the terms and conditions herein, or (ii) its warranties.
(b) Customer shall protect, indemnify, hold harmless, and defend Happy Birthday Advertising from claims brought (i) for breaches of the Terms and Conditions herein, (ii) pursuant to a breach of its Can-Spam Compliance duties pursuant to paragraph 1 hereof, (iii) for breaches of the warranty above, and (iv) for damage caused to Happy Birthday Advertising pursuant to paragraph 7 below.
7. Intellectual Property. The Customer acknowledges that Happy Birthday Advertising shall retain all right, title and interest under applicable contractual, trade secret, trademark, copyright, patent and related laws in the Happy Birthday Advertising services, its software, the Happy Birthday Advertising email database, and the Happy Birthday Advertising marketing materials; and accordingly, Customer hereby specifically acknowledges and agrees that it will not use the Happy Birthday Advertising services for purposes of gaining a competitive advantage against Happy Birthday Advertising, or in any capacity to further efforts to reverse engineer same. The Customer acknowledges and agrees that the Happy Birthday Advertising services are unique and the result of millions of dollars of investment and years of development, and that any breach of Happy Birthday Advertising's rights in and to the Intellectual Property would be irreparable. The Customer hereby represents and warrants that the Customer has the right to use, whether by ownership or by grant of license to the Customer by the owner, all trademarks, service marks, and copyrighted material, including but not limited to company logos, tag lines, photographs, and images submitted to or requested to be used by Happy Birthday Advertising for the purpose of appearing on the Customer’s advertisement. Happy Birthday Advertising hereby acknowledges and agrees that the advertising plans, logos and other marks of the Customer are the property of the Customer, and accordingly Happy Birthday Advertising shall not use such intellectual property other than in the performance of the services described herein; provided, however, that Happy Birthday Advertising shall be entitled to re-use the advertisements in accordance with Paragraph 3 above, royalty-free and at no charge by you to Happy Birthday Advertising and Happy Birthday Advertising shall have the right to identify Customer in the Happy Birthday Advertising customer list within any media, electronic or printed, that Happy Birthday Advertising may wish to publish that customer list.
8. Cancellation Policy. Upon receipt of a signed Insertion Order work begins, and expenses are incurred. Therefore, Insertion Orders cannot be cancelled once submitted with signature.
9. Continuing Communications. When you visit the Site or send e-mails to Happy Birthday Advertising, you are communicating with Happy Birthday Advertising electronically. You consent to receive communications from Happy Birthday Advertising electronically so that Happy Birthday Advertising may respond to your communications. Happy Birthday Advertising will communicate with you by e-mail or by posting notices on this Site, or in any other format Happy Birthday Advertising in its sole discretion chooses to use, and you agree that all agreements, notices, disclosures and other communications that Happy Birthday Advertising provides to you electronically satisfy any legal requirement that such communications be in writing.
10. Miscellaneous.
(a) Happy Birthday Advertising will not be liable to the Customer for any delay or failure in its performance of any of the acts required by this Agreement if and to the extent that such delay or failure arises beyond the reasonable control of Happy Birthday Advertising, including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, internet downtime, material or component shortages, supplier failures, embargoes, earthquakes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, flood, epidemics, riots and strikes.
(b) This Agreement will be governed by and construed in accordance with the laws of the State of Florida, which are intended to supersede any choice of laws rules which might require the application of the laws of another jurisdiction. Both parties hereby consent to the jurisdiction of the state courts of Florida with respect to actions brought to enforce or interpret this Agreement and all other disputes between the Parties. The sole and exclusive venue for all lawsuits shall be in Palm Beach County, Florida. The prevailing Party in any lawsuits, including appeals, shall be entitled to an award of its reasonable attorney's fees and costs. All Parties expressly waive trial by jury and agree any dispute shall be decided by a judge.
(c) This Agreement will be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, representatives, successors, and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole, or in part, without the other Party's prior written consent.
(d) No waiver of any provision of this Agreement shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a continuing waiver in any other instance.
(e) This Agreement (including the exhibits, amendments and addenda hereto which are incorporated herein by this reference) sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters of intent, agreements, covenants, negotiations, arrangements, communications, representations, understandings or warranties, whether oral or written.
(f) Deposits are nonrefundable and will be forfeited one year from the last activity on an account.
(g) Happy Birthday Advertising has the right to modify or update these Terms of Service at any time without prior notice to you. Any additional or different terms shall be effective upon being posted on this site. Your continued use of Happy Birthday Advertising’s services following the posting of any additional or different terms in these Terms of Service constitutes your irrevocable acceptance of these or different terms, and such terms will be controlling on Insertion Orders submitted for email services from the date posted until future amendment, if any.
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