1. SCOPE OF AGREEMENT
EACH USER IS RESPONSIBLE FOR REGULARLY REVIEWING THE Earnlink WEBSITES TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED.
Otherwise, this Agreement may not be amended except in writing signed by both you and Earnlink.
You may also have a signed written agreement which is expressly incorporated herein (“Written Agreement”), and which in conjunction with the Agreement and policies referred to herein, comprise the entire Agreement between Earnlink and you. The Written Agreement may contain different or additional terms which supersede terms in this document and may refer to earlier versions of these terms.
2. DESCRIPTION OF SERVICES
3. NO RESALE OF SERVICES
Your right to use the Services is personal to you and you agree not to resell the use of the Services.
4. DATA PROTECTION AND STORAGE
While your account is active, Earnlink will store user’s data collected and added through the Earnlink platform, for a period of up to one year unless you delete them. Contact lists and message history are maintained while the account is in good standing. Earmware shall take reasonable measures to maintain administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer information in its possession. User further agrees that it is responsible for saving, backing-up and storing its own data that is used and stored temporarily in Earnlink Websites. Earnlink data storage is provided as a convenience to Customer only and Earnlink and its parent(s), partner(s), subsidiary(ies), and affiliate(s) (“Affiliates”) have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Services.
5. USER ACCOUNT, PASSWORD, AND SECURITY
You also choose your own password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur by all users associated with your account. You agree to notify Earnlink immediately of any unauthorized use of your account or any other breach of security. Earnlink will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Earnlink or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
6. CHARGES AND PAYMENT
You agree to pay all charges for your use of the Services according to the payment plan applicable to your Services, and in effect for your country of residence. Except as otherwise provided in your Written Agreement, Earnlink reserves the right to change prices or institute new charges for access to or use of Earnlink Services. Charges for Services may include activation, recurring subscription, and usage fees. Your activation and recurring subscription fees are payable in advance and are non refundable. Usage charges are charged in accordance with the usage rates applicable to each of the Services you use.
Your payment plan may include a monthly allowance of emails, contacts, contact validations, and database appends. In the event that you have exceeded your rate plan’s allotted allowance you will be automatically charged usage fees for such each email or contact in excess of your monthly allowance. Unused allowances are not transferable from month to month.
Payment of your Earnlink account balance is due monthly. Charges are to be paid on a monthly basis in the currency in which billed. A failure to pay the charges is a material breach of this Agreement and grounds for termination by Earnlink. If the payment method for your Earnlink account is by credit card and payment is not received by Earnlink from the card issuer or its agents, you agree to pay all amounts due upon demand by Earnlink. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that Earnlink is authorized to charge your designated card. You agree that Earnlink may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that Earnlink may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement you receive from your card issuer.
User agrees that Earnlink may submit charges for your usage fees and recurring subscription fee each month, without further authorization from you, until you provide written notice and receive confirmation from an authorized Earnlink representative that your account termination request is received and accepted. Such notice will not affect charges submitted before Earnlink reasonably could act on your notice. If you have any question regarding any charges that have been applied to your account, you must contact Earnlink sales agent or Customer Support within 30 days of the charge date. Failure to use your account will not be deemed a basis for refusing to pay any charges submitted by Earnlink in accordance with this Agreement.
Should Earnlink deem your cumulative account activity, including but not limited to factors such as high sending volume, lower content quality or large contact lists, to be detrimental to Earnlink’s ability to provide services to you or to other customers, Earnlink reserves the right in its sole discretion to terminate the Services or move you to a Higher Volume Subscription Plan.
7. USE OF SERVICES / CUSTOMER RESPONSIBILITIES
You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. If you are registering on behalf of a corporation you warrant that you have the authority to bind the corporation. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement. Images hosted by Earnlink or Earnlink provided services may only be used in connection with the Services and for no other purpose whatsoever. To the extent you use images provided by Earnlink, Earnlink hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Services.
8. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by this Agreement and any notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Earnlink server, or the network(s) connected to any Earnlink system, server, or interfere with any other party’s use of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Earnlink service or to any of the Services, through hacking, password mining or any other means. You will not use or register the name Earnlink or any other trade name or trade mark of Earnlink without express, prior permission, and you will not obstruct the identification procedures used by Earnlink in the Services.
You represent that the information submitted for transmission via the Earnlink network for the Services is for lawful purposes only and that the transmission of messages or files is not in violation of any federal, state or provincial laws including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, provincial, state, national or other law. You may not use the Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the copyright holder. You agree to comply with all applicable laws, regulations, or conventions including those related to Do-Not-Call provisions, email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data.
You are fully responsible for the content of your transmissions through the Services and agree and acknowledge that you are the creator of all content, and that Earnlink is not the author or publisher of any content and Earnlink does not rent or sell lists of any kind. Earnlink and its service providers simply acts as a passive conduit for you to send and receive information of your own choosing.
You shall not use the Services to store (1) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191), or (2) any other type of information that imposes independent obligations upon Earnlink or its service providers.
In accordance with its Prohibited Use Policies, Earnlink prohibits the use of the Services or web sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same): including, but not limited to, illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, obscenity/sexually explicit, and similar activities. This is not an exhaustive list, and Earnlink, in its sole discretion, may determine whether your use is prohibited and its determination shall be final, binding and conclusive for all purposes under this Agreement. Earnlink will terminate your use of its Services if Earnlink determines such prohibited content or use is in violation of this Agreement. Any information stored on the Earnlink servers that is deemed to be unlawful or in contravention of this Agreement or legal and regulatory requirements may be deleted at any time by Earnlink or its service providers without notice. Earnlink reserves the right to remove any image which contravenes this Agreement without notice to you.
Earnlink does not: Represent or endorse the accuracy or reliability or any opinion, advice or statement made through the Services; Assume liability for any harassing, offensive or obscene/sexually explicit material distributed through the Services by you or others under your account; Assume any liability for any material distributed through the Services by you or others under your account which is distributed in violation of any third party’s copyright or other intellectual property right; Assume liability for claims concerning unsolicited fax, email or voice messages sent by you or others under your account including, as applicable, but not limited to, the Telecommunications Act*, S.C. 1993, c. 38, as amended, (Telecommunications Act), the Canadian Radio-television and Telecommunications Commission Unsolicited Telecommunications Rules*, as may be amended from time to time, (see URL:http://www.crtc.gc.ca/eng/trules-reglest.htm*) (the Unsolicited Telecommunications Rules), the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, as amended, (PIPEDA*), the Telephone Consumer Protection Act of 1991*, FTC regulations, and the Can-Spam Act*.
Earnlink and its service providers reserve the right at all times to disclose any information as Earnlink deems necessary to satisfy any applicable law, regulation, legal process or governmental request. Earnlink reserves the right but is not obligated to review the content of any of your messages for compliance with this Agreement and other legal requirements upon receipt of a complaint. Earnlink further reserves the right to take any other action with respect to the Services that Earnlink deems necessary or appropriate, in its sole discretion, if Earnlink believes you or your information may create liability for Earnlink or others, compromise or disrupt the Services for you or other Customers, or cause Earnlink to lose (in whole or in part) the services of Earnlink, ISPs or other suppliers.
You agree to indemnify and hold Earnlink (and its Affiliates, Service Providers and Suppliers) and its agents, business associates, resellers, licensors, and suppliers (collectively, Suppliers) harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including, but not limited to, any attorney’s fees and expenses) arising out of your use of the Services, your violation of the Agreement, and the delivery of any of your messages and documents using the Services, or the infringement of any trademark or copyright by you.
9. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
This Publisher respects the intellectual property of others. We cannot possibly monitor all the user generated content on the website and have no responsibility to do so. If you believe that another user has posted your copyrighted work in a way that is accessible on the Site and constitutes copyright infringement, please contact us to report possible copyright infringement. When contacting us, please provide the following information to our legal agent:
A full description of the copyrighted work that you claim has been infringed; the URL where the material that you claim is infringing is located on the site; your name, address, telephone number, and e-mail address; a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf.
Publisher’s legal agent can be reached as follows:
By postal mail:
Earnlink Corporation Legal Agent
6965 El Camino Real #542
Carlsbad, CA 92009
In the event you are able demonstrate ownership of copyrighted content which you did not authorize another user to publish, and you wish for the content to be removed, Publisher will remove the copyrighted content from the site or if authorized may modify the content to indicate its proper owner including a link to the original owner’s website.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Services are wholly owned by Earnlink and/or its licensors and service providers except where expressly stated otherwise.
11. UNSOLICITED MARKETING
The transmission of unsolicited telemarketing phone calls, faxes and email is regulated in the United States under the Telemarketing Sales Rule*, the Federal Telephone Consumer Protection Act*, the Can-Spam Act*, as well as other statutes and regulations, and in Canada under the Telecommunications Act*, the Unsolicited Telecommunications Rules* and PIPEDA* and may also be regulated under the laws of a number of other countries, states and provinces. Unsolicited marketing in violation of such laws through the Services is prohibited and a material violation of this Agreement. As an Earnlink user, you agree to abide by the terms of the Anti-Spam Policy posted by Earnlink, Amazon SES, Sendgrid, Mailchimp, Aweber, Campaigner.com and another other service provider use in accordance with Earnlink Services.
12. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE WITH RESPECT TO THE SERVICES OR ANY OTHER PRODUCT, DOCUMENTATION OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. Earnlink FURTHER EXPRESSLY DISCLAIMS GUARANTEE OF CONTINUED AVAILABILITY OF THE SERVICES OR ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, MARKETING LITERATURE OR COLLATERAL OR STATEMENTS REGARDING PERFORMANCE OF THE SERVICES BY Earnlink WHICH IS NOT CONTAINED IN THIS SECTION SHALL BE CONSIDERED TO BE A WARRANTY OR REPRESENTATION, AND SHOULD NOT BE RELIED UPON AND IS NOT BINDING UPON Earnlink.
NONE OF Earnlink NOR ANY OF ITS AFFILIATES OR SUPPLIERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS OR OTHER DIFFICULTIES OUTSIDE OF Earnlink OR ANY SUCH AFFILIATES’ OR SUPPLIERS’ CONTROL WHICH COULD LEAD TO ANY DELAY, INTERRUPTION OR MISDIRECTION OF FAX, VOICE OR DATA DELIVERY SERVICE TO THE CUSTOMER’S EMAIL ADDRESS, PAGER, TELEPHONE OR ANY OTHER RECEIVING DEVICES OR THIRD-PARTY PHONE OR FAX MACHINES, DATA STORAGE AND/OR DELIVERY SERVICES.
THE AGGREGATE LIABILITY OF Earnlink, ITS AFFILIATES OR SUPPLIERS, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH OR FAILURE OF AN ESSENTIAL PURPOSE), TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION OR OTHERWISE IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNTS PAID BY CUSTOMER TO Earnlink WITH RESPECT TO THE SERVICES GIVING RISE TO THE CLAIM. IN NO EVENT SHALL Earnlink, ITS AFFILIATES OR SUPPLIERS OR AFFILIATES OF ANY OF THEM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS, LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERIES, SERVICE INTERRUPTIONS, PERFORMANCE OR FAILURE OF THE INTERNET OR Earnlink’S SYSTEMS OR INTERNET SERVICE PROVIDERS, OR DELETION OR FAILURE TO SAVE DELIVERIES), EVEN IF Earnlink HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. IN THE EVENT APPLICABLE LAW DOES NOT PERMIT SUCH EXCLUSIONS TO BE COMPLETELY DISCLAIMED, THESE EXCLUSIONS SHALL BE INTERPRETED AS NECESSARY TO GIVE Earnlink THE FULL BENEFIT OF ANY DISCLAIMER OR LIMITATION AS PERMITTED BY APPLICABLE LAW.
Users of Earnlink’s month-to-month Services may cancel the Services at any time by emailing the details of the cancellation request to [email protected]. Earnlink reserves the right to suspend or terminate Services if Earnlink, in its sole discretion, believes that the Services are used for a purpose that is unlawful or prohibited by this Agreement or any notices. Any termination of your account shall not relieve you from any amounts owing or any other liability accruing under this Agreement prior to the time that such termination becomes effective.
14. JURISDICTION AND GOVERNING LAW
You agree that this Agreement shall be governed by and construed in accordance with the laws of California, and you hereby consent to the jurisdiction of such province and agree that all disputes shall be tried in the city of San Diego, California. You expressly waive any right, and agree not to have any dispute under the Agreement tried or otherwise determined by a jury, except where required by law.
Any exclusion or limitation of Earnlink liability specified in this Agreement shall survive the expiration or termination of this Agreement for any reason.