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PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING ANY OF THE IMN SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THE IMN SERVICES.
IMakeNews, Inc. ("IMN") has elected to make available to you certain IMN proprietary services that enable you to have customized e-newsletters and/or emails distributed to your customers (the “IMN Services”). The IMN Services may not be used for the sending of unsolicited email (sometimes called "spam"). See our Email Policy referenced herein.
The following are the terms and conditions for access to and use of the IMN Services. By checking the ‘I Agree’ button on the sign-up page or by using any of the IMN Services, you, the subscriber to the IMN Services, are acknowledging that you have accepted these terms and conditions (also referred to as this “Agreement”).
1. Fees
Once you have completed your free evaluation period, you will be subject to monthly subscription fees in accordance with the IMN fee schedule provided to you in conjunction with your online registration for the applicable IMN Services (the "Fee Schedule"). Amounts set forth on the Fee Schedule exclude taxes. You will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Services, or your access to the Services, except for taxes based on IMN’s net income. You agree to pay reasonable attorneys’ fees and court costs incurred by IMN to collect any unpaid amounts owed by You. You shall be obligated to provide IMN with a valid credit card and IMN will charge your credit card, monthly in advance, for your use of the IMN Services beginning at the end of your free evaluation period. If IMN is for any reason unable to effect payment via your credit card, IMN will attempt to notify you via email and your access to the IMN Services may be disabled until payment is received. Amounts paid for the IMN Services are not refundable. Until your subscription to the IMN Services is terminated, you acknowledge and understand that IMN will continue to charge you for the IMN Services regardless of whether the IMN Services are used or not. All fees are subject to change at any time in IMN’s sole discretion; provided, however, that IMN will use reasonable efforts to notify you via email prior to the effectiveness of any change to its Fee Schedule. In order to validate your credit card or debit card provided to IMN, IMN will make a temporary authorization of $0.01. This is a temporary authorization and is not an actual charge – even to the extent that it appears on your statement. Nothing will be charged or withdrawn from your account; provided, however, that temporary authorizations are held against your balance to guarantee the funds for the transaction amount. The length of time funds are held is determined by your card issuing bank’s policies. Most card issuing banks will remove authorizations within 3-14 days if they are not claimed for settlement. Since this may affect your available remaining balance, IMN recommends contacting your bank to determine its policies on temporary authorizations. The length of time funds are held is determined by your bank’s policies. Please note, IMN does not have the ability to manually drop these authorizations from your debit or credit card.
2. Access to Internet; Equipment
In order to use the IMN Services, you are responsible at your own expense to access the Internet, either directly or through devices that access web-based content. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device. You shall not attempt to access any other of IMN's systems, programs or data that are not made available for public use.
3. License Grant; Restrictions
Subject to these terms and conditions and your payment of all applicable fees, IMN hereby grants to you (i) a non-exclusive, non-transferable, revocable license to allow up to one User to access the website for each IMN Service to which you have subscribed, solely in order to configure such IMN Service for your internal business purposes and (ii) a non-exclusive, non-transferable, revocable license to distribute any IMN Content (as defined below in Section 5) made available to you for inclusion in your e-newsletter and/or emails that forms part of the IMN Services to your customers pursuant to the automatic e-newsletter and/or email distribution system that forms part of the IMN Services. A “User” shall mean you unless you are a corporate or similar entity, in which case a User shall mean any of your employees, consultants or independent contractors. This license is restricted to use by you and your Users and does not include the right to use any IMN Service on behalf of any third party or the right to permit any non-User to access or use any IMN Service. All rights not expressly granted to you are reserved by IMN and its licensors. There are no implied rights.
This is an Agreement for services and access to the IMN Services only, and you are not granted a license to any software by this Agreement. Unauthorized use, resale or commercial exploitation of any of the IMN Services in any way is expressly prohibited. Without IMN’s express prior written consent in each instance, you shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any of the IMN Services or any software or data related to the IMN Services or used to make the IMN Services available to you. Except as expressly permitted in this Agreement, you shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign any of the IMN Services, any content forming part of any IMN Services (including any IMN Content), or your rights to use the IMN Services to any third-party. You shall take all measures necessary to ensure compliance by all of your Users authorized to access the IMN Services with these terms and conditions and shall be liable for any breach by your Users of such terms and conditions. You are responsible for maintaining the security of your account, passwords and files.
4. Compliance with Law; Further Covenants
You represent, warrant and agree that you shall operate your business and use the IMN Services solely in accordance with these terms and conditions and in accordance with all applicable laws and regulations (including but not limited to the federal CAN-SPAM Act of 2003 and all other applicable laws related to spamming and privacy). IMN may, in its sole discretion, block any email messages, remove any of your content or prohibit any use of the IMN Services that IMN believes may be in violation of the foregoing.
In furtherance of the foregoing, you acknowledge and agree that: (a) the IMN Services shall not be used for the sending of unsolicited email (sometimes called "spam"); (b) every email message sent by the IMN Services on your behalf will contain the IMN "unsubscribe" link that allows the recipient to remove themselves from your mailing list; (c) by submitting any information to IMN, you grant IMN the right to use this information to provide you with the use of the IMN Services and for any other purpose that is consistent with IMN’s Privacy Policy, which may be modified by IMN from time to time, in its sole discretion and (d) any information that IMN collects from you and your customers and other e-newsletter and/or email recipients designated by you as described below may be used by IMN to provide the IMN Services to you and for any other purpose that is consistent with IMN’s Privacy Policy.
5. Ownership; IMN Content
You acknowledge and agree that all right, title and interest in and to the IMN Services and any IMN Content and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain IMN’s or its licensors’, and this Agreement in no way conveys any right or interest in the IMN Services or the IMN Content other than a limited license to use them in accordance herewith. The IMN name, the IMN logo, and the product names associated with the IMN Services, including, but not limited to “IMN”, are trademarks of IMN or third parties, and no right or license is granted to use them. You shall not remove any IMN trademark or logo from any IMN Service. For purposes of this Agreement, “IMN Content” shall mean any articles, images and other content made available to you by IMN as part of the IMN Services for use in e-newsletters and/or emails sent via the IMN Services. IMN reserves the right, in its sole and absolute discretion, to include IMN and third party advertising and promotional items and links in the e-newsletters. IMN reserves the right, in its sole discretion, to add, modify or remove all or a portion of the content categories made available as part of the IMN Services or any of the IMN Content therein without notice to you.
6. Data Collection
In connection with the IMN Services, you acknowledge and agree that IMN may collect and maintain certain information related to you and your customers and their use of your website that you have either provided to IMN or that IMN obtains from your website, including , without limitation, (i) customer order and sales transaction history, (ii) your customers’ email addresses, (iii) any information you provide to us in registering for use of any of the IMN Services and (iv) your website url and information related to your products (including, without limitation, product SKU numbers, product prices and categories assigned to products). IMN shall not publicly distribute or disclose any such data regarding your customers unless aggregated with other data and in a form and manner that does not associate such customer data with you or a particular customer of yours.
7. Content
All data described in Section 6 above and all other content (articles, images, data and email addresses) uploaded into the IMN Service (the “Customer Content”) are stored in a private and secure fashion, and will not be used by IMN except as set forth herein and except as necessary to provide the IMN Services to you, and you hereby grant to IMN a limited, non-exclusive, non-transferable, royalty-free right to copy, use, store, display and distribute the Customer Content in connection with providing the IMN Services to you. The accuracy of Customer Content shall be your sole responsibility. IMN does not guarantee the accuracy, integrity or quality of such Customer Content. You shall not use the IMN Services to: (a) upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or that exploits children; (b) upload or otherwise transmit any Customer Content that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) upload or otherwise transmit any Customer Content, or offer for sale on any website that is linked to any email distributed by IMN on your behalf, any product or service that may not be lawfully purchased by the recipient of the email; (d) upload or otherwise transmit any Customer Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person; or (e) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. IMN may immediately disable or terminate your access to the IMN Services without refund if IMN determines, in its sole discretion, that you have violated any of the policies listed above or elsewhere in this Agreement. Certain states have child protection registry laws that prohibit the sending of email to email addresses listed on the registry if the email, or a linked website, advertises a product or service that may not be lawfully purchased by the email recipient. If your Customer Content, or any linked website, advertises any product or service that may not be lawfully purchased by minors in all states, it is your responsibility to ensure that the email addresses you provide to IMN do not include any email addresses that are listed on any such child protection registry. You represent and warrant that you shall not use the IMN Services to procure the sending by IMN of any email to any recipient in breach of any such law.
8. Automatic Publication
You acknowledge and agree that all e-newsletters and/or emails to be sent on your behalf via the IMN Services will be scheduled by IMN for automatic distribution on a date made available to you via the IMN Services.
9. Email Policy
In connection with your use of the Service, you shall at all times comply with the IMN Email Policy, which may be modified by IMN from time to time, in its sole discretion.
10. Termination
IMN may terminate this Agreement and your use of the IMN Services or disable your account, in each case at any time with or without cause, and with or without notice. IMN shall have no liability to you as a result of such termination or disablement. You may terminate this Agreement or your use of an IMN Service at any time by filling out a termination form provided within the applicable IMN Service or by activating the self-termination application set forth in the IMN Service. There are no refunds for any fees paid. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability. IMN reserves the right in its sole and absolute discretion to change, suspend or discontinue — temporarily or permanently — some or all of the IMN Services, at any time without notice. IMN will not be liable to you for any such modification, suspension or discontinuance of the IMN Services.
11. Amendments to Prices and Agreement
IMN reserves the right to modify the terms and conditions set forth in this Agreement, and/or the prices for any IMN Services, at any time in its discretion and to offer additional service offerings with or without charge (provided that it is not IMN’s intent that such modifications substantially affect the license rights granted to you in Section 3 above and for which consideration was paid by you). IMN will use its reasonable efforts to notify you by email if it has made any changes in the prices or this Agreement, but, whether or not such notification is provided, you are responsible for reviewing the then current IMN publication prices, terms and conditions which shall be set forth on the website for the IMN Services. If you continue to use the IMN Services after IMN has made any such changes without exercising your termination rights, then you will be deemed to have accepted and agreed to such changes.
12. Warranties; Disclaimer
You represent and warrant that: (i) Customer Content, including without limitation the products, items and services offered by you pursuant to such content, will not infringe on the copyrights, trademarks, service marks, patents, trade secret, privacy, publicity, or other intellectual property or personal rights held by any third party; (ii) you have all power and authority to enter into this Agreement and have duly and validly authorized this Agreement, which shall be enforceable against you in accordance with its terms, and; (iii) you agree to comply with all federal and state laws, regulations and rules, including without limitation regulations pertaining to online commerce, and consumer privacy rules promulgated the Federal Trade Commission.
THE IMN SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMN CONTENT, ARE PROVIDED TO YOU “AS IS”. YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY IMN. IMN DOES NOT WARRANT THAT YOUR USE OF ANY OF THE IMN SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IMN SHALL NOT BE LIABLE FOR ANY FAILURE OF THE IMN SERVICES ARISING DUE TO FACTORS OUTSIDE IMN’S REASONABLE CONTROL.
Your sole and exclusive remedy for any failure or nonperformance of the IMN Services or any error or omission in the IMN Content and IMN’s sole remedy shall be for IMN to use commercially reasonable efforts to repair the error or defect in the applicable IMN Service or to correct the IMN Content.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL IMN OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF IMN TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE IMN SERVICE IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT IMN HAS SET ITS PRICING IN RELIANCE ON THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
14. Indemnity
You shall defend, indemnify, and hold IMN harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against IMN and its employees and affiliates arising from or connected with (i) any claim that Customer Content infringes or misappropriates any third party copyright, patent, trademark, service mark, trade secret, privacy, publicity or other intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by you.
15. Export
You shall use the IMN Services in compliance with all laws and regulations, including without limitation all export control laws and regulations of the United States, which include the Export Administration Regulations, the International Traffic in Arms Regulations and any embargoes enforced by the Office of Foreign Assets Controls. You shall not export or re-export the IMN Services or any IMN Content in violation of any applicable export control law or regulation.
16. Miscellaneous
(a) The IMN Services are operated by IMN from its offices in and around Boston, Massachusetts, United States of America. Due to the nature of the Internet, the IMN Services are accessible from all fifty US states and from other countries. As each of these places has laws that may differ from those of Massachusetts and from each other, and as you and IMN both benefit from establishing a predictable legal environment in which to operate, use or otherwise exploit the IMN Services, by using the IMN Services, you agree that this Agreement shall be deemed to have been entered into in the Commonwealth of Massachusetts, USA. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of law; (b) this Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral; (c) the parties hereto agree that only the Massachusetts courts, either federal or state, shall have exclusive jurisdiction over this Agreement and any controversies arising out of this Agreement; (d) in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement but this Agreement shall be construed as if such invalid, illegal or other unenforceable provision had never been contained herein; (e) you shall not assign your rights or obligations hereunder without IMN's advance written consent; (f) subject to the foregoing subsection (e), this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns; and (g) no waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion.
Revision 10-21-09