POSTED AND EFFECTIVE: 5/9/2011 (updated: 6/14/13)
Hi. We’re really glad you’ve decided to use Nimbit to help build and manage your music business. But before you get started, it’s really important that you read and agree to these Terms of Service below. It’s pretty detailed, but important stuff. Don’t be afraid – we’ve done our best to put these terms in an understandable form, but there are still some places where our lawyers made reading it feel like getting a root canal to read!
To get you started, here are some things that you might be wondering about:
Q: Is Nimbit exclusive? Am I signing my future away to you?
A: No. Unlike the “major labels of old”, we don’t lock you into anything. And we don’t ask you to sign your rights away. The only rights we need are the ones necessary to help us help you market and sell on your behalf.
Q: Can I sell covers?
A: You have to either own or control the rights to everything you upload, market and sell, or have a compulsory license from the copyright holder to market and sell the cover and grant us the rights below. So whether you’re selling or giving away music, don’t upload cover songs unless you have all permissions and authorizations in writing.
Q: How much does it cost, what commissions do you charge?
A: In general, the paid plans start at about a “couple of beers a month”. For all of our plans, we make money when you do – our commissions range from 5% to 10% per transaction, which means you keep at least 90%.
Q: I use another service; can I also use yours?
A: Yes. We have no problem if you use other tools and services. We’re here to help you, not limit who else can also help you.
Now on to the important legal stuff …
(Note: the info above isn’t legally binding, the stuff below is)
1. THE SERVICE
Please read these Terms of Service (“Agreement” or “TOS”) carefully before using the software and services offered by PreSonus Acquisition, LLC, a PreSonus Audio Electronics, Inc. company, D.B.A. Nimbit, Inc., (collectively “Nimbit”, “Company”, “we”, or “us”).
This Agreement sets forth the legally binding terms and conditions for your use of the website at www.nimbit.com and any related Company websites (collectively the “Site”) and the products and services owned and operated by the Company (collectively the “Service”). By using the Site or Service in any manner, you (“you”, “your”) agree to be bound by this Agreement, and that you have the legal authority to enter into this Agreement. The Site and Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
The Company reserves the right to add to, delete or change these TOS and any Site and Service related fees at any time and for any reason including, but not limited to, frequent changes in technology, the market, the business, and applicable law. Your continued use of the Service constitutes your binding acceptance of any such changes or modifications that we may make. As such, you agree you are responsible for checking these TOS from time to time for such changes. We also reserve the right, in our sole discretion, to restrict, suspend, or terminate your access to all parts or any part of the Service at any time for any reason without prior notice or liability. We may change, suspend, or discontinue all aspects or any aspect of the Service at any time, including the availability of any Service feature, database, or content, without prior notice or liability. We reserve the right to remove any Submissions (defined below) to the Site or Service for any reason without prior notice to you and without liability to us.
2. RULES OF USE AND CONDUCT
Without limiting the foregoing, you agree that you will not: use the Site and/or Service in an illegal manner; defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others; publish, post, upload, distribute, or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, information, or any other material which might otherwise subject the Company to public disparagement or scorn; manipulate the data or statistics for certain materials; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another person’s computer; or download any file that you know or reasonably should know cannot be legally distributed.
We reserve the right to automatically change your username and remove your content from the Site and/or Service at any time, without notice, for any reason whatsoever. You agree not to disclose or share your Service account password.
Use of the Site and/or Service is subject to existing laws and legal process, and nothing contained herein shall limit our right to comply with governmental, court, and law-enforcement requests, or any other legal requirements relating to your use of the Site and/or Service or information provided to or gathered by us with respect to such use. The Company reserves the right in its sole and absolute discretion to restrict or remove from its Site and/or Service any content that it deems to be in violation of its acceptable use policy or any laws. In the event the Company takes action due to such possible violations, the Company shall not be obligated to refund to you any fees paid in advance of such action.
We take copyright infringement seriously. We will remove goods or content immediately if we receive an official “Take Down” notice. Upon receipt we will attempt to notify you regarding the “Take Down” notice. If we do not receive a counter claim or “Put Back” notice in accordance with the Digital Millennium Copyright Act (DMCA), Online Copyright Infringement Liability Limitation Act (OCILLA) § 512, the related content will remain off the Site and/or Service.
3. REPS, WARRANTIES, AND LICENSES
Representations and Warranties:
You represent and warrant to the Company and the Company represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under this Agreement, (ii) the execution and performance of your or its obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) this Agreement is a legal, valid and binding obligation of the parties entering into these TOS, and is enforceable in accordance with these terms and conditions.
You represent and warrant to the Company that, in your use of the Site and/or Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations.
You further represent and warrant to the Company that: (i) there are no claims, demands or any form of litigation pending or, to the best of your knowledge, threatened, with respect to any of your submitted material (“Submissions”); (ii) the Company will not be required to make any payments to any third party in connection with its use of your Submissions, including but not limited to payments (except for the expenses that the Company incurs in providing the Service) to you, third parties, music publishers, mechanical rights agents, performance rights societies, persons who contributed to or appear in your materials, your licensors, unions, or guilds; and you have secured all third-party consents, licenses, and permissions necessary to enter into and perform under these terms; (iii) the use of any instructions, recommendations, or the like contained in your Submissions will not cause injury to any third party; (iv) your Submissions do not contain viruses or any other programs or technology designed to disrupt or damage any software or systems; (v) your Submissions do not and will not violate any law, statute, ordinance, or regulation; and (vi) your Submissions are not and will not be defamatory, trade libelous, pornographic, or obscene.
a. Digital Goods: You grant the Company and our business partners a worldwide, royalty-free, non-exclusive, license to: (i) host and display your Submissions to users on our Site and our business partners’ web sites, in whole or in part, alone or in compilation with content provided by third parties; and (ii) make your Submissions accessible to Site users and those of our business partners; distribute or otherwise make your Submissions accessible, at your discretion, to Site users and those of our business partners for streaming, download, and or purchase; (iii) copy your Submissions to our servers or those of our business partners; (iv) re-encode your s; (v) edit your Submissions (but not your music) to ensure that they comply with our policies and guidelines; (vi) use, display and/or transmit any cover artwork, product imagery, screen shots and/or liner notes included in your Submissions; and, (vii) use any trademarks, service marks, or trade names incorporated into your Submissions and use the names and approved likeness of any individual whose performance or image is contained in your Submissions. You specifically grant the Company the right to sublicense any of the aforementioned rights to third-party distribution outlets with which the Company partners for the purpose of promoting, marketing and selling such Submissions (“Distribution Outlets”). In addition, you grant the Company all rights necessary to distribute, exploit, transmit, perform, exhibit, and make available by streaming audio or other digital media, or by any other means now known or hereafter devised, any sound recordings or musical compositions or other content that you provide to the Company to Distribution Outlets with which we have partnered for the purpose of distributing, promoting and marketing such Submissions on your behalf. By using the Service, you grant us the right to use your name and likeness to promote your store on the Sites, and to be included on lists of representative artists who use the Service. Any music or digital samples you upload can be listened to or viewed by anyone on the Site and free to preview. You hereby grant a license to the Company and its affiliates whereby we may allow users to listen to and purchase your recordings, including any digital samples, and view and/or listen to any and all digital and physical products, artwork, images, graphics, logos, sounds, or anything else provided by you for marketing and sale through the Service, free of any performance rights royalties.
b. Non-Digital Goods: If you choose to sell non-digital goods through the Service and have the Company fulfill those orders, you agree that: (a) within ten (10) days of adding your goods to a store, you will deliver an initial stock of ten units of each product to the Company; (b) you will deliver the goods in “retail ready” form (e.g., CDs/DVDs properly packaged and shrink-wrapped, clothing individually bagged or shrink-wrapped with sizes clearly marked, fragile and odd-sized merchandise such as mugs and posters pre-packaged for retail shipping.) the Company reserves the right to reject any good that is not properly delivered for retail sale or to modify the commission rate for goods that require excessive handling; (c) the Company retains sole control of all business, creative and technical aspects and may refuse to post any good for any reason or for no reason at any time; (d) goods missing in shipment en route to a customer are your sole responsibility (should the Company become aware of any such incidents, it shall use reasonable efforts to report them to you in a reasonable timeframe); and (e) you have the rights to distribute the goods and you warrant them to be free of defects in material and workmanship.
Through your use of the Site and/or Service and third party distributors, you are electing to allow worldwide distribution of your goods. You agree that you have the master rights to sell the music and goods that you market and sell through the Site and/or Service. You agree that you have obtained all rights and licenses for the intellectual property related to the goods you are supplying the Company to sell on your behalf. You agree not to sell any songs or goods unless you own them, have licensed them for download or resale, or know it to be in the public domain. You agree that you have secured all of the proper licenses if you are covering someone else’s song.
The Company-provided unique barcodes may not be altered by you or anyone, in any way. The Company retains full ownership of your assigned barcode and has the right to revoke its use if you violate any of these terms. By accepting a Company barcode you agree to use it solely for the unique product to which it was assigned, and hereby agree not to use it on any other product(s). The Company-provided barcodes and the barcode service may not be re-sold or transferred without the express written permission of the Company
You agree to keep your contact and account information up-to-date. You understand that it is your sole responsibility to remain informed regarding changes to the Site and/or Service as well as updates to the Company’s TOS.
4. SERVICE FEES, PAYMENTS, TAXES, AND OTHER FEES:
After your PayPal account charges have been processed, the following service fees will be deducted from your set sales price and the amounts that are collected by the Company (“Service Fees”).
All Digital & Physical (Merchandise) Products: 5-10% Service Fee (percentage depends on your current subscription plan).
Fan Funding, Contributions and Tips: 5-10% Service Fee (percentage depends on your current subscription plan).
eTickets: 3% Service Fee along with a $1.00 per ticket handling fee.
The Company uses PayPal Adaptive to pass all store purchases through YOUR PayPal account. All payments are processed immediately by PayPal at the time of the transaction, including but not limited to, payments to you and split payments to your designated payees, and Service Fee payment(s) to the Company.
You agree to always use a current, working, and verified PayPal account as the primary payee on your account. Furthermore, you understand that by not providing an active PayPal account you could be forfeiting any proceeds from a sale through the Company. PayPal will notify you and hold your payment for thirty (30) days and if unclaimed, will return the payment to the buyer. The buyer has no obligation to return what they have purchased! For more information regarding PayPal’s terms and conditions go to www.paypal.com.
For legacy customers with extended distribution provided by the Company prior to stopping service to 3rd party retailers (iTunes, AmazonMP3 etc.), the Company will continue monthly payouts via PayPal until we no longer receive payments for distributed titles.
Your customers are purchasing directly from you.
The Company takes a Service Fee for delivering the platform. You are considered the merchant of record and you are responsible for collecting and paying any and all applicable sales taxes including, local, state, country and VAT taxes. The Company provides the tools for you to add taxes during checkout and passes the collections through to you. When the Company fulfills your orders, we will set your taxes to include proper sales tax for Massachusetts but the remission of those taxes remains your responsibility.
Other Fees / Charges:
If you choose the self-fulfillment option, it is your sole responsibility to process customer service requests and customer refunds in a timely fashion. For self-fulfillment, you will need to upgrade your PayPal account to a “Free Premier” or “Free Business” account and grant the Company API access in order to automatically process returns. If you do not upgrade your PayPal account, you will then be fully responsible for refunding customer monies manually from your PayPal account and you will not be able to recover any Service Fees paid to the Company or split payments to your designated payees.
b. Nimbit Fulfillment
If you choose the Nimbit fulfillment option, you authorize the Company to warehouse, pick, pack, and ship your goods. For this option, there is a stocking fee of 2¢ per good per month for stock greater than the total number of inventory sold over a 2 month period. For goods remaining in inventory at the Company for more than one (1) year after your account has been inactive, suspended, or canceled, the Company reserves the right to dispose of the goods at our sole discretion. Prior to the disposal of remaining goods, the Company will attempt to notify you by using the contact information provided by you in your Company account profile. It is your responsibility to request the return of inventoried goods by emailing firstname.lastname@example.org.
c. Referral Bonus:
Fill out the form from on our Site, while logged into your account, and your friends or contacts will be sent a special link that will credit your account when they sell and/or upgrade.
The Company will pay you a one-time referral bonus for each referral that results in a signup as follows:
Nimbit Free: $2.00
Nimbit Plus, Nimbit Premium, or Account Upgrade: $10.00
Plan specifics and fee amounts are detailed on the Site. Any additional fees or plans on the Site are incorporated by reference into this Agreement. In the event that your Service subscription fees are in default, Nimbit will suspend your account and all related services. Subscriptions are not refundable. If you cancel or downgrade we will continue your subscription for the length of the current billing cycle. Annual subscription prorated balances may be applied to an upgraded paid account.
Pricing, structures, commissions and policies may be changed from time to time and are effective immediately after the changes have been posted to the Site. All such posted policies and pricing structures or rules are hereby incorporated by reference into this Agreement.
5. ACCOUNT/PERSONAL INFORMATION AND PRIVACY
Account/Personal Information: You agree to provide and keep up to date, true, accurate, current, and complete information about yourself as requested in the Service’s registration process on the Site, and in other places in the Site and/or Service as requested.
We ask you for your personal information when you create an account, sign up for mailing lists, make a purchase, enter a contest or sweepstakes, and may also ask you questions about interests or preferences. We use this information to personalize the Site for you, to pay you monies owed, to inform you about or offer you features or services customized to your preferences, for marketing purposes, to contact you about the Service or purchases, or to notify you of pertinent account information. We do not sell your personally identifiable information. We may, however, share it with business partners and other companies that help us operate or enhance the Site or Services, such as financial processing companies.
The Company uses industry-standard efforts to safeguard any personal information provided by you and any financial information we receive from you is encrypted. However, we may be required by law to release personal information about you as a result of a lawsuit, subpoena, or as immediately necessary to protect our rights or the rights and safety of other Site users. From time to time, we may request additional information from you but we will never send you an email requesting any personal or credit card information. Such requests shall only occur when you log-in to your account. In the event of a user problem with the Site, it may become necessary for our support team to log in to your account to provide customer support.
Please notify us immediately if you believe we have violated any of our policies. We will promptly investigate the issue and attempt to remedy the situation as soon as practicable.
6. TERM, TERMINATION & EFFECT OF TERMINATION
a. Term: This Agreement remains in effect until terminated by either party as outlined below, (“Term”).
b. Termination: You may withdraw from the Service for any reason, at any time.
The Company may immediately suspend or terminate your use of the Site and/or Service if it believes, in its sole and absolute discretion that you have breached a term of this Agreement. The Company shall notify you by email of its intent to terminate this Agreement at the email address provided in your account profile.
c. Effect of Termination: If you or the Company terminates your use of the Site and/or Service, the Company may delete any Submissions or other materials relating to your use of the Service on computers, the Site, or otherwise in its possession and the Company will have no liability to you or any third party for doing so.
If you have physical stock at the Company that you would like returned, you must notify the Company in writing at email@example.com within thirty (30) days of suspension or termination, requesting a return shipment, and agreeing to all charges related to shipping and handling. If you fail to notify the Company of your intentions within thirty (30) days of receiving notice of termination, the remaining physical stock shall become the property of the Company and Company may distribute, sell, or discard said stock at its sole discretion.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
a. Disclaimer of Warranties:
THE COMPANY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITE AND/OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME THE COMPANY MAY REMOVE THE SITE AND/OR SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SITE AND/OR SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR SERVICE IS AT YOUR SOLE RISK. THE SITE AND/OR SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SITE AND/OR SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY THE COMPANY) PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
b. Limitation of Liability:
IN NO CASE SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE SITE AND/OR SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE AND/OR SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE AND/OR SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
THE COMPANY SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SITE AND/OR SERVICE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND THE COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
THE COMPANY DOES NOT REPRESENT OR GUARANTEE THAT THE SITE AND/OR SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO.
8. WAIVER AND INDEMNITY
BY USING THE SITE AND/OR SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SITE AND/OR SERVICE, OR ANY ACTION TAKEN BY THE COMPANY AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE AND/OR SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF THE COMPANY’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
9. GOVERNING LAW/JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of the State of Louisiana. The venue and jurisdiction of any litigation between the Parties shall lie in East Baton Rouge Parish, Baton Rouge, State of Louisiana USA.
10. BINDING DISPUTE RESOLUTION/ARBITRATION
a. The parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be settled by binding arbitration to be held in Baton Rouge, Louisiana in accordance with the rules then in effect of the American Arbitration Association (the “Rules”). The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the Parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction.
b. The arbitrator(s) shall apply Louisiana law to the merits of any dispute or claim, without reference to conflicts of law rules. The arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law. You hereby consent to the personal jurisdiction of the state and federal courts located in Louisiana for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the Parties are participants.
c. You agree that it would be impossible or inadequate to measure and calculate the Company’s damages from any breach of the covenants set forth herein. Accordingly, you agree that if you breach a material term herein, we will have available, in addition to any other right or remedy available, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of any such provision. You further agree that no bond or other security shall be required in obtaining such equitable relief and you hereby consent to the issuances of such injunction and to the ordering of such specific performance
This Agreement (including all of the policies and other agreements described in this TOS, which are hereby incorporated herein by this reference) contains the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
You agree that all notices (except for notices concerning breach of this Agreement) from the Company to you may be posted on the Site. Notices concerning breach will be sent either to the email or postal address provided in your account profile. In either case, delivery shall be deemed to have been made five (5) days after the date sent. Notices from you to the Company shall be made either by email, sent to either firstname.lastname@example.org or email@example.com, or send it snail mail, first class to our address at: PreSonus Acquisition, LLC, c/o PreSonus Audio Electronics, Inc., 7257 Florida Boulevard, Baton Rouge, Louisiana 70816, Attn: Legal Department.
The rights, powers and remedies of the Company in this Agreement, including without limitation the right to suspend, restrict or terminate the Service, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to the Company at law or in equity.
Any provisions, including without limitation the disclaimers of warranty and limitations and exclusions of liability contained herein, which by their meaning are intended to survive termination of this Agreement shall survive the termination of this Agreement.
You agree that no joint venture, partnership, employment or agency relationship exists between the Company and you as a result of this Agreement or use of Service.
The section headings in this Agreement are for convenience only and have no legal or contractual effect.
12. ADDITIONAL TERMS FOR EMAIL AND MESSAGING USE
You hereby represent, acknowledge and agree that:
• Company may not be used for the sending of unsolicited email (sometimes called “spam”).
• You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Site and/or Services.
• You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you in connection with your use of the Site and/or Service.
• You acknowledge and agree that not all email messages sent through use of the Site and/or Service will be received by their intended recipients.
• Every email message sent by you in connection with the Site and/or Service must contain the “unsubscribe” link that allows the recipient to remove themselves from your mailing list.
• You will comply with the restrictions on content of email messages and activities using the Site and/or Service as set forth or referenced in this Agreement.
• You acknowledge and agree that you are the sole or designated “sender” (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Site and/or Service.
• You agree that the “from” line of any email message sent by you will accurately and in a non-deceptive manner identify your organization, and that the “subject” line of any email message sent by you will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
• You agree to include in any email message sent by you using the Site and/or Service your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
• In your use of the Site and/or Service, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.
• Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
As a matter of privacy, the Company cannot share with you the email addresses of those who complain about your emails. You are responsible for ensuring that your emails do not generate a number of spam complaints in excess of industry norms. The Company, at its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. The Company will terminate your use of email if it determines that your level of spam complaints is higher than industry norms (as solely determined by the Company).
The Company prohibits the use of the Site and/or Service by any person or entity that:
• Provides, sells or offers 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; dating services; adult “swinger” promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
• Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
• Provides, sells or offers 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 and stock and trading tips, and mortgage finance offers, 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.
• Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
• Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
• Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
• Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
• Promotes, solicits or participates 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.
• Engages in any libelous, defamatory, scandalous, threatening, or harassing activity.
• Posts 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.
• Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
The Company, at its own discretion, may immediately disable your access to the Service or remove all or a portion of your content, without refund, if the Company believes in its sole discretion that you have violated any of the policies listed above or this Agreement.
You shall use the Site and/or Service only in compliance with the terms of this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws).