This Agreement takes effect on the earliest of You: 1) clicking a box to create an account (“Create My Account”) presented with a link to this Agreement, 2) executing or electronically accepting an Ordering Document referencing this Agreement, or 3) using of the Services, (the earliest of the foregoing being the “Effective Date”). If You enter into this Agreement or acquire the Services on behalf of an entity, You represent and warrant that You have the authority to accept this Agreement on the entity's behalf.
In order to use the Services, You must:
be at least eighteen (18) years old;
complete the registration process;
provide true, complete, and up to date contact information to Bizmark Enterprises.
By using the Services, You represent and warrant that You meet all the requirements listed above. Bizmark Enterprises may refuse to provide the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement. If You have any questions, feel free to send an email to our support address and a Bizmark Enterprises representative will contact you shortly.
SECTION 1: DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
has the meaning ascribed in Section 2.C.
“ has the meaning ascribed in Section 2.C.
has the meaning ascribed in Section 4.B.i.1.
of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of a party or the right to receive more than fifty percent (50%) of the profits or earning of the entity.
has the meaning ascribed in Section 3.C.
has the meaning ascribed in Section 4.A.i.
means EU Data Protection Directive 95/46/EC.
has the meaning ascribed in Section 3.D.i.
means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority, including where applicable, the EU Directive. Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in Section 16 and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Subscriber resides.
means harmful or malicious code, files, scripts, agents, programs, or the like designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, corrupting, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system, database, or network (or other device on which such code is stored or installed), including but not limited to viruses, worms, time bombs, and Trojan horses.
means the period specified in an Ordering Document (including any renewals of the same) during which Customer will have access to the Services.
means any form (including an electronic form), either executed by the Parties or agreed to by the Customer online, that sets out the commercial terms of Customer’s purchase. All Ordering Documents shall be deemed to incorporate, and shall be subject to and governed by, this Agreement.
means the Site, Software, Statistical Data, products, services (including any applicable support services), applications, tools and other resources made available by Bizmark Enterprises or accessible at (or other website(s) owned by Bizmark Enterprises) and all related product and service names, logos, design marks, slogans, and all other material comprising the Site, Services, and Software.
means any software, documentation, or data related to the Services.
has the meaning ascribed in Section 5.C.
has the meaning ascribed in Section 4.C.
means a service provider that processes data on behalf of, and as dictated by, Bizmark Enterprises.
means any individual: 1) whose email address is included in a Subscriber List, 2) whose information is stored on or collected via the Services, or 3) to whom Users send emails to or otherwise engage or communicate with via the Services.
is a list of Subscribers uploaded to the Services or created on or via the Services.
has the meaning ascribed in Section 8.B.
means the subscription type chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer.
means any software, products, tools, or applications that are used in connection with the Services that are not owned by Bizmark Enterprises.
means any person accessing and/or using the Services through Customer’s or End Clients’ account.
means anything, excluding Statistical Data, Users or Subscribers post, upload, share, store or otherwise provide through or using the Services (including, without limitation, any and all emails, messages, materials, images, text, and other content).
SECTION 2: AGREEMENT STRUCTURE
The above order of precedence will apply unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the controlling document; 2) the controlling document specifically provides that a lower order document may vary the applicable term of the controlling document; or 3) the Parties expressly agree otherwise. All rights not expressly granted herein are reserved by Bizmark Enterprises.
This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Bizmark Enterprises may make modifications to this Agreement by posting a revised Agreement on the Site and/or by sending an email to a Full Access User (or Administrator, if applicable). Customer acknowledges and agrees that use of the Services by Customer after the Last Modified Date constitutes Customer’s acceptance of the modified terms, that such modified terms shall become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to this Agreement. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on Bizmark Enterprises unless signed by a duly authorized representative of Bizmark Enterprises. To the extent the provisions of this Section 2.B are held unenforceable, they shall be modified or severed in accordance with Section 16.I.
Additional terms may apply to add-on features, Beta Features, and/or any managed services (each an “Add-On Feature”) offered by Bizmark Enterprises. These additional terms, available at , will be considered incorporated into this Agreement when Customer, a Full Access User, or an Administrator activates the Add-On Feature or purchases an Add-On Feature on an Ordering Document (the “Additional Terms”). Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will prevail to the extent of the conflict.
SECTION 3: SERVICES, OBLIGATIONS, AND RESTRICTIONS ON USE
Subject to Section 13.C, Bizmark Enterprises, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness.
Customer is responsible for obtaining all hardware, software and services, which are necessary to access the Services.
From time to time, Bizmark Enterprises may make certain services and/or features available to Customer for use which are still in their beta stage (“Beta Features”). Customer acknowledges and agrees that Beta Features have not been fully tested and are provided on an ‘as is’ basis. Customer further acknowledges and agrees that, to the fullest extent permitted by Law, Bizmark Enterprises makes no representations, warranties or guarantees in relation to such Beta Features.
Customer agrees to:
when using the Business or Organization version of the Services, designate at least one User within Customer’s account to have ‘Full Client Access’ who will have administrative privileges within the account and who Customer represents and warrants is authorized to act on behalf of Customer (a “Full Access User”);
keep contact information for the Full Access User updated and promptly respond to queries from Bizmark Enterprises sent to the Full Access User’s email address;
be responsible for Users’ compliance with this Agreement;
be solely responsible for the accuracy, quality, integrity and legality of the User Content and of the means by which Customer acquires User Content;
be responsible for the nature and content of all of the User Content (including all content, materials, and information that Users, End Clients, and/or Subscribers upload and/or transmit using or relating to the Services);
use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Bizmark Enterprises promptly of any such unauthorized access or use;
be responsible for ensuring that User’s computer systems, technology or other similar items used in connection with the Services do not interfere with or disrupt the integrity or performance of the Services;
procure that each User complies with the terms of this Agreement as if they were a party to it, including but not limited to, the Anti-Spam Policy; and
use the Services only in accordance with this Agreement and Laws.
Except where the following restrictions are prohibited by Law, Customer shall not, and shall not permit any Users or third parties to, directly or indirectly: (1) violate the Anti-Spam Policy; (2) send or forward personal mail through the Services; (3) send mail created using the Services through another service; (4) send emails to individuals under the age of 13; (5) upload or provide any social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information (collectively, “Sensitive PII”) to the Services or use the Services to collect, transfer, or store any Sensitive PII; (6) host images or content on Bizmark Enterprises servers or through Bizmark Enterprises’s Services for any purpose other than for the sending of email campaigns; (7) send or transfer any message through the Services that is greater than 300 Kilobytes or use the Services in any other manner that puts an excessive burden on the bandwidth of the Services; (8) delete, bulk unsubscribe, or otherwise alter or modify Subscriber Lists in order to evade billing thresholds; (9) use the Transactional Email Feature to send bulk commercial emails; (10) copy, modify, distribute, translate, or create derivative works of the Services or any part of Bizmark Enterprises’s Services; (11) except as specifically permitted by this Agreement, sell, resell, rent, or lease the Services or any part of Bizmark Enterprises’s Services; (12) reverse engineer, reverse assemble, decompile, or attempt to discover or extract the source code, object code, underlying structure, or algorithms, found at or through the Services or any software, documentation, or data related to the Services; (13) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (14) remove trademark, logo, copyright or other proprietary notices or labels from the Services or any Software; (15) use the Services to store or transmit material in violation of any third party rights, including Intellectual Property Rights and privacy rights; (16) use the Services to store or transmit Malicious Code; (17) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (18) hack, violate, attempt to violate, attempt to gain unauthorized access to the Services or their related systems or networks; (19) attempt to probe, scan, or test the vulnerability of the Services or perform any penetration testing against or on the Services; or (20) use the Services for timesharing or service bureau purposes.
SECTION 4: RESELLING THE SERVICES
Bizmark Enterprises may, in its absolute discretion and subject to the terms and conditions of this Agreement, allow Customer to resell the Services to Customer’s end clients (“End Clients”), which may be on a “white-label” basis if Customer uses the Creative Agency (or Reseller) version of the Services. Notwithstanding anything to the contrary herein, Bizmark Enterprises may, in its sole discretion, revoke Customer’s permission to resell the Services at any time.
Customer acknowledges and agrees that Customer’s resale of the Services to End Clients is subject to the following conditions:
when using the Creative Agency (or Reseller) version of the Services, to designate at least one User within Customer’s account who will have administrative privileges within the account and who Customer represents and warrants is authorized to act on behalf of Customer (the “Administrator”);
to keep contact information for the Administrator updated and promptly respond to queries from Bizmark Enterprises sent to the Administrator’s email address;
to set up a separate password-protected account which, unless otherwise agreed by the End Client, may be accessed only by that End Client;
to promptly respond to queries from End Client and provide all customer relationship management to its End Clients, including first level support services in relation to the Services;
to educate End Clients on terms related to the assessment of fees for use of the Services, particularly as they relate to Subscription Tiers and Usage-Based Features as these may be incurred without Administrator intervention;
not to represent itself as an agent or employee of Bizmark Enterprises nor make any representations regarding Bizmark Enterprises, on Bizmark Enterprises’s behalf, or about any of the Services;
to enter into binding contractual relationships with each End Client that requires the End Client to comply with the terms of this Agreement as if they were a party to it (“End Client Agreements”) and enforce implementation of such End Client Agreements;
in the event that the End Client intends to transfer personal information via the Services, to ensure compliance with Laws with respect to that transfer.
Customer further agrees that End Clients’ Access to, and use of, the Services does not in any way diminish:
Customer’s strict obligation to ensure Users’ compliance with the terms of this Agreement;
Bizmark Enterprises’s right to provide an acceptable use policy to the end users of its Services, including End Clients.
Bizmark Enterprises’s right to enjoy the benefits of the disclaimers set forth in Section 3.C (Beta Features), Section 10 (Third Party Applications) and Section 11 (Disclaimers) of this Agreement;
Bizmark Enterprises’s right to enforce the terms of this Agreement, including, without limitation, Bizmark Enterprises’s right to suspend or terminate access to the Service at any time, irrespective of any impact on Customer or End Clients and without liability to Customer or End Clients.
If Customer elects to have the End Client pay fees to Customer, Customer may determine, at its discretion, the fees to be charged to End Client for the Services and for any related services (such as account setup, creation of templates, etc.); provided, Customer agrees to pay to Bizmark Enterprises the standard fees Bizmark Enterprises charges for the applicable Services, irrespective of the fees Customer charges to its End Client. Customer agrees that End Client’s failure to pay fees to Customer shall have no bearing on Customer’s obligation to pay Bizmark Enterprises its standard fees for End Client’s use of the Services. Customer acknowledges and agrees that Customer bears all risk of nonpayment by End Clients and is solely responsible for all costs and expenses associated with collecting payment from its End Clients.
If Customer elects to have the End Client pay fees directly to Bizmark Enterprises, Customer agrees that Bizmark Enterprises is entitled to deduct the standard fees Bizmark Enterprises charges for the applicable Services and remit the balance to Customer only after receipt of payment by End Client. In addition, Customer acknowledges and agrees that in the event of any disputes between Customer and End Client regarding fees, Bizmark Enterprises will be the final arbitrator of any such fee-related disputes. If an End Client fails to pay Bizmark Enterprises for fees incurred by such End Client, Customer shall be responsible for payment to Bizmark Enterprises of applicable fees within 30 days of email or other written notice to Customer.
If Bizmark Enterprises is required to refund any fees to End Client for any reason, Customer shall reimburse Bizmark Enterprises the full amount that Customer received for resale to that End Client.
Bizmark Enterprises may audit Customer’s compliance with this Section 4.B. Customer agrees to promptly provide Bizmark Enterprises with its End Client Agreements and other documentation reasonably requested to Bizmark Enterprises.
. If an End Client contacts Bizmark Enterprises for access to a sub-account within Customer’s account (a “Sub-Account”) or the retrieval of User Content in such Sub-Account, Bizmark Enterprises will first make an attempt to notify an Administrator via email and request Customer’s express permission to grant the End Client access to the relevant Sub-Account. If such Administrator does not respond within 5 days, Bizmark Enterprises may, but is not obligated to, use reasonable discretion to determine who owns the Sub-Account or the User Content in such Sub-Account based on the User Content and Users in that Sub-Account. If Bizmark Enterprises is able to discern with reasonable certainty that such End Client is the owner of the User Content in the Sub-Account in issue, Bizmark Enterprises may, at the request of the End Client, transfer the User Content or the entire Sub-Account into a separate standalone Bizmark Enterprises account and provide End Client with full administrative control of such account. If Bizmark Enterprises is unable to make such a determination, then End Client will need to produce a court order from a court exercising competent jurisdiction to gain access to the sub-account in question.
Notwithstanding any of the foregoing, Customer remains fully liable and responsible for any breaches of this Agreement by End Clients and its Users. Customer hereby agrees to defend, indemnify, and hold Bizmark Enterprises, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from and against all costs, expenses, losses and liabilities arising in any way (including to the maximum extent permitted under statute, the law of tort (including negligence), equity or any other theory of law whatsoever) from or in relation to use of the Services by End Clients and/or its Users and all other acts and omissions thereof in connection to the Services.
SECTION 5: OWNERSHIP AND INTELLECTUAL PROPERTY
By using the Services or submitting any User Content through the Services, Customer hereby grants Bizmark Enterprises and its Subprocessors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the User Content in connection with the Services. For clarity, the foregoing license granted to Bizmark Enterprises and its Subprocessors, does not affect Customer’s (or its End Clients’) ownership or license rights in its User Content unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses to Bizmark Enterprises and its Subprocessors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights. In addition, while using the Services, Customer may provide information (such as Customer’s name, contact information, and/or other registration information) to Bizmark Enterprises. Customer agrees to, and agrees and warrants that it has the necessary consents to, permit Bizmark Enterprises to use this information and any technical information about Customer’s use of the Services to tailor the user experience of the Services to Customer, to facilitate Customer’s use of the Services, and to communicate with Customer.
Customer acknowledges and agrees that the Services are the property of Bizmark Enterprises or its affiliates, licensors or suppliers. Unless stated otherwise, all Services are protected as the copyright, trade dress, trademarks and/or other Intellectual Properties owned by (or licensed to) Bizmark Enterprises. Customer is not authorized to use any of the Services in any advertising, publicity or any other commercial manner without the prior written consent of Bizmark Enterprises. Customer’s use of the Services confers no title or ownership in the Services and is not a sale of any rights in the Services. All ownership rights to the Services remain in Bizmark Enterprises or its third party suppliers, as applicable.
Notwithstanding anything to the contrary in this Agreement or elsewhere, Bizmark Enterprises may monitor, analyze, and compile statistical and performance information based on and/or related to Customer’s use of the Services, in an aggregated and anonymized format (“Statistical Data”). Customer agrees that Bizmark Enterprises may make such Statistical Data publicly available, provided that it: 1) does not contain identifying information; and 2) is not compiled using a sample size small enough to make the underlying data identifiable. Bizmark Enterprises and/or its licensors own all right, title and interest in and to the Statistical Data and all related software, technology, documentation, and content provided in connection with the Statistical Data, including all Intellectual Property Rights in the foregoing.
Customer may provide feedback, suggestions, and comments to Bizmark Enterprises regarding the Services (“Feedback”). Bizmark Enterprises shall have all ownership right, title, and interest in such Feedback. Notwithstanding the foregoing, to the extent that any Feedback is deemed to be owned by Customer, Customer hereby grants to Bizmark Enterprises a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed, provided that such Feedback is anonymous.
Unless otherwise agreed by the parties, Customer hereby agrees that Bizmark Enterprises may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Bizmark Enterprises a perpetual, nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
SECTION 6: CONFIDENTIALITY
The Parties acknowledge that in the course of performing their obligations under this Agreement, each party (a “Recipient”) may receive information that is either clearly marked as “confidential” or nonpublic information which, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”) from the other party (a “Discloser”). Recipient covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Discloser, except (a) to those employees, representatives, or contractors of the Recipient who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by confidentiality obligations, or (b) as such disclosure may be required by Law, subject to and to the extent permitted by Law, the Recipient providing to the Discloser written notice to allow the Discloser to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Recipient’s use of information: (i) previously known to it without breach or obligation of confidence, (ii) independently developed by or for it without use of or access to the Discloser’s Confidential Information, (iii) acquired by it from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or (iv) that is or becomes publicly available through no breach of this Agreement.
SECTION 7: PRIVACY AND SECURITY
Customer understands and acknowledges that the Services are not configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that Bizmark Enterprises is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA. As such, Customer agrees not to, and not to permit Users to, transmit, request, provide access to, submit, store, or include any PHI through the Services. Customer agrees that Bizmark Enterprises may terminate this Agreement immediately if Customer is found to be in violation of this Section 7.B.
In the event that Customer intends to transfer the Personal Data of an EU Data Subject, Customer shall notify Bizmark Enterprises and the parties shall execute Bizmark Enterprises’s Data Protection Addendum incorporating the EU Standard Contractual Clauses provided by Bizmark Enterprises. Once executed, such Data Protection Addendum will be deemed wholly incorporated into this Agreement.
Customer is solely responsible for keeping Customer’s and/or Users account name, password, and any other login credentials confidential. Customer is responsible for any and all activities that occur within Customer’s account, whether authorized by Customer or not. Customer must notify Bizmark Enterprises immediately of any unauthorized access or use of Customer’s or End Clients’ account. Bizmark Enterprises will not be held responsible or liable for any losses due to lost or hacked passwords.
Bizmark Enterprises shall charge Customer, and Customer agrees to pay, all fees for Services in accordance with its Ordering Document, Subscription Plan, and Subscription Tier. Customer is responsible for reviewing the pricing schedule, features, and limits associated with its Subscription Plan and its Subscription Tier , but is not obligated to, contact Customer to warn Customer that they have exceeded the included features or other limits of its current Subscription Plan or Subscription Tier.
Fees associated with each Subscription Plan are based on Customer’s Subscription Tier. Customer’s Subscription Tier at any given time is determined by the higher of: 1) the number of emails being sent (unless Customer’s plan includes unlimited emails), and 2) the number of Subscribers in the Customer’s Subscriber Lists (as determined by adding the number of Subscribers in each Subscriber List). Except as otherwise stated in Customer’s Ordering Document, if Customer exceeds the limits of its Subscription Tier, Bizmark Enterprises will upgrade the Customer’s account to the appropriate Subscription Tier and charge Customer the applicable fees for that Subscription Tier for the remainder of the Order Term and any renewals thereof. Customer has the sole responsibility for updating its Subscriber Lists to ensure Customer is being charged at the appropriate Subscription Tier.
If Customer, a Full Access User, or an Administrator accesses, uses, or activates any features which are only included in a higher-priced Subscription Plan or provides Users with access to the same, Bizmark Enterprises may, in its absolute discretion, upgrade Customer’s account to the appropriate higher-priced Subscription Plan for the remainder of the Order Term and any renewals thereof. Customer agrees to pay fees associated with the upgraded Subscription Plan for the remainder of the Order Term, and any renewals of the Order Term.
Customer may order Add-On Features at any time by using the Add-On Feature and/or executing an Ordering Document for the Add-On Feature. Customer agrees to pay fees associated with the applicable Add-On Feature for the remainder of the Order Term, and any renewals of the Order Term.
Customer acknowledges and agrees that fees for certain features of the Services may be assessed based on Users’ actual usage of those features (for example, fees are incurred every time a User runs a ‘Design and spam test’). Customer agrees to pay for Users’ usage of any such features.
If Customer sends emails through the Services while using a trial version of the Services, Customer agrees that Bizmark Enterprises shall charge Customer, and Customer agrees to pay applicable fees whenever Customer sends a campaign to more than 5 recipients.
Unless otherwise listed on Customer’s Ordering Document, Customer agrees to pay Bizmark Enterprises all applicable fees in U.S. Dollars (or such other currency as listed in Customer’s account page), up front via credit card, for Services Customer purchases or uses in accordance with the terms listed on Customer’s Ordering Document. Customer agrees to provide accurate payment information, and hereby authorizes Bizmark Enterprises to charge such credit card for all fees set forth in the Ordering Document for the duration specified therein (and any renewal thereof). Payments are due for any billing period on the same date, or the closest date in that billing period, to the day Customer signed up for the Services and made its first payment. If any part of a billing period is included in the term, then payment is due for the full billing period.
All fees stated in the Ordering Document are exclusive of any applicable taxes. Customer shall pay any sales, use, value added, excise, property withholding or similar tax, duties, and any related tariffs, and similar charges applicable to Customer’s purchase of the Services assessable by any local, provincial, federal, or foreign jurisdiction and shall include any related penalties or interest, except taxes based on Bizmark Enterprises’s net income (“Customer’s Taxes”). Customer’s Taxes may be added to the final price charged to Customer on Customer’s invoice. Customer shall pay Customer’s Taxes with no reduction or offset in the amounts payable to Bizmark Enterprises hereunder. Customer will, and hereby agrees to, promptly reimburse Bizmark Enterprises for any and all of Customer’s Taxes (and any applicable penalties) that Bizmark Enterprises may be required to pay in connection with this Agreement upon receipt of Bizmark Enterprises's invoice.
If any amount due is not received by the due date, then without limiting Bizmark Enterprises's rights or remedies, Bizmark Enterprises may (a) apply a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid; (b) accelerate the payment of any fees payable; (c) immediately suspend Customer’s access to the Services until payment is made; (d) terminate Customer’s access to the Services provided that Bizmark Enterprises gives Customer notice of non-payment and 10 business days opportunity to cure; and/or (e) condition future subscription renewals and orders on pre-payment or payment terms shorter than those specified in the Ordering Document.
Bizmark Enterprises reserves the right to change fees for any Services at the time of renewal and Customer is responsible for reviewing the fees charged by Bizmark Enterprises prior to renewal, provided no fee change will be effective until renewal of that Service (unless the fees in the prior period were designated in the applicable Ordering Document as promotional or ‘one-time’). Upon expiration of the applicable Order Term, Customer will automatically be charged in accordance with the payment method specified on Customer’s Ordering Document for renewal unless Customer downgrades or terminates its account in accordance with this Agreement.
Bizmark Enterprises may charge a re-activation fee to re-activate an account that has been suspended.
Except as otherwise provided in this Agreement or required by Law, Bizmark Enterprises will not provide refunds or credits for partial or unused periods of service or mid-term downgrades.
SECTION 9: REPRESENTATIONS AND WARRANTIES
Customer represents and warrants that Customer:
has the legal power and authority to enter into this Agreement, and doing so will not violate any other agreement to which it is a party;
will not transmit any Malicious Code in connection with the Services;
will not violate the Anti-Spam Policy; and
will use the Services only in compliance with this Agreement and Laws (including but not limited to policies and Laws related to spamming, privacy, obscenity, and defamation and Laws such as the HIPAA, GLB, EU Data Privacy Laws, the Australian Privacy Act and the Australian SPAM Act and other similar or Laws).
Customer further represents and warrants that:
all personal information (including any Personal Data as defined in the EU Directive) provided by Customer to Bizmark Enterprises (including, without limitation, that of Users and Subscribers) has been collected with the relevant individual’s consent;
Customer has informed all persons whose information is collected: 1) of the purpose for which that information was collected, 2) that Customer may provide this information to its vendors and/or service providers for the purposes of use in relation to the Services, and 3) that such information may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America; and
Customer has obtained the consent of such persons for processing of their personal information by its vendors and service providers in the foregoing manner.
SECTION 10: THIRD PARTY APPLICATIONS
Customer agrees and acknowledges that certain features of the Services depend on the continuing availability of Third Party Applications. If the providers of these Third Party Applications cease to make their services or programs available on reasonable terms, Bizmark Enterprises may cease providing any affected features or services without entitling Customer to any refund, credit, or other compensation.
If Customer enables, installs, or connects any Third Party Applications for use with the Services:
permits the transmission of and/or access to User Content to such Third Party Applications;
grants to Bizmark Enterprises and its Subprocessors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data transmitted to or obtained by Bizmark Enterprises from any Third Party Application enabled, installed, or connected to Bizmark Enterprises by Customer; and
represents and warrants that it has provided all notices and obtained all consents required by Law to grant the foregoing permissions, rights, and licenses and that doing do so will not violate any third party's privacy, Intellectual Property Rights, or other rights.
Customer acknowledges and agrees that:
any consent given by Bizmark Enterprises permitting Customer to enable, install, or connect any Third Party Application does not constitute Bizmark Enterprises’s endorsement of such Third Party Application; and
Bizmark Enterprises will not be held responsible for any Third Party Applications Customer uses in connection with the Services, including but not limited to, for any disclosure, modification or deletion of User Content resulting from any such transmission to or access by Third Party Applications.
Customer agrees to comply with any requests by Bizmark Enterprises to remove any connections to or from other websites and/or applications to the Services which Customer installs.
SECTION 11: DISCLAIMERS
Bizmark Enterprises agrees to make every reasonable attempt to make sure that all email messages sent through Bizmark Enterprises’s Servers follow email standards, but Bizmark Enterprises does not guarantee that messages will look consistent across all email platforms due to the number of different HTML composition tools available. For example, if Customer uses Microsoft Word to generate HTML email messages, it is expected that recipients of Customer’s message using a non-Microsoft email application may have difficulty reading Customer’s message.
From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. Bizmark Enterprises will work within reason to ensure the amount of down-time is limited. Customer releases Bizmark Enterprises entirely of all responsibility for the consequences of any down-time.
Bizmark Enterprises does not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. Customer agrees that use of all programs and files associated with the Services is at its own risk and Customer releases Bizmark Enterprises entirely of all responsibility for any consequences of its use.
From time to time, Customer may obtain advice or information from Bizmark Enterprises help or support pages, white papers, and/or Bizmark Enterprises’s employees (collectively, “Advice”). Customer acknowledges and agree that such Advice will not be deemed to constitute financial, legal or tax advice. Customer should seek the advice of its own advisers prior to acting upon any such Advice. Customer acknowledges and agrees that any Advice is provided strictly “as is” and that Bizmark Enterprises makes no warranty or representation of any kind regarding the accuracy or quality of such Advice. Customer agrees that use of and reliance on any such Advice is at its own risk and Customer releases Bizmark Enterprises entirely of all responsibility for any consequences of its use of and reliance on any such Advice.
USE OF THE SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BIZMARK ENTERPRISES DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW BIZMARK ENTERPRISES DISCLAIMS ALL WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
PLEASE NOTE THAT DOWNGRADING CUSTOMER’S ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF CUSTOMER’S ACCOUNT. BIZMARK ENTERPRISES DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.
Subject to Section 13 (in particular, Section 13.C if Customer resides in Australia) and unless otherwise expressly set forth elsewhere in this Agreement, Customer’s sole and exclusive remedy for any failure or nonperformance of the Services shall be limited to, Bizmark Enterprises (at its election): 1) using commercially reasonable efforts to adjust or repair the Services; 2) resupplying that Service; or 3) providing Customer with a refund for the amount actually received by Bizmark Enterprises (exclusive of all taxes), for the relevant Services.
SECTION 12: INDEMNIFICATION
Customer agrees to defend, indemnify and hold Bizmark Enterprises, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any third party claims, losses, damages, liabilities, settlements, and expenses, (including, but not limited to attorney fees) (collectively, "Claims") related to, arising from, or connected with: 1) Customer or End Client’s use of the Services; 2) Customer’s breach of this Agreement or any representation or warranty made by Customer herein; 3) a Subscriber List or User Content (including, without limitation, Claims alleging that the User Content violates or misappropriates the Intellectual Property Rights or other rights of any third party); 4) Customer or End Client’s negligence or intentional misconduct; 5) any actual or alleged violation of Anti-Spam Policy by Customer or End Client; and/or 6) any violation of Law by Customer or End Client. Notwithstanding the foregoing, Customer shall not make any admissions on behalf of Bizmark Enterprises or settle any claim without Bizmark Enterprises’s consent, which will not be unreasonably withheld or delayed.
Promptly upon learning of any Claim arising from or related to allegations that the Services violate or infringe a third party’s Intellectual Property Rights (“IP Claim”), Customer shall give notice to Bizmark Enterprises of any such IP Claim and immediately deliver to Bizmark Enterprises all original notices and documents (including court papers) received in connection with and/or related to the IP Claim. Bizmark Enterprises shall have the exclusive right, but no obligation, to assume defense of such IP Claim at any time and at any stage. If Bizmark Enterprises assumes defense of any such IP Claim, Customer agrees to, and will procure that its End Clients agree to, cooperate in the defense thereof as reasonably requested by Bizmark Enterprises. Upon assuming the defense of an IP Claim, Bizmark Enterprises may appoint any legal counsel selected by Bizmark Enterprises and settle any IP Claims on such terms and conditions it deems advisable. Customer agrees that if Bizmark Enterprises assumes the defense of the IP Claim, Bizmark Enterprises will not be liable to Customer for any legal costs or expenses subsequently incurred by Customer in connection with the analysis, defense or settlement of such IP Claim. Customer acknowledges and agrees that the assumption of the defense of an IP Claim by Bizmark Enterprises is not an acknowledgment, will not be construed as an acknowledgment, that Bizmark Enterprises is liable to indemnify Customer in respect of the IP Claim, nor will it constitute a waiver by Bizmark Enterprises of any defenses it may assert against the Customer if Customer claims it is owed indemnification for such IP Claim.
SECTION 13: LIMITATION OF LIABILITY
TO THE EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL BIZMARK ENTERPRISES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF USER CONTENT, OR LOSS OF ANY DATA RELATED THERETO, OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF BIZMARK ENTERPRISES HAS BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT THE CONSIDERATION WHICH BIZMARK ENTERPRISES CHARGES HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY BIZMARK ENTERPRISES OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, BIZMARK ENTERPRISES OR ITS AFFILIATES IS FOUND LIABLE TO CUSTOMER FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IN NO EVENT WILL BIZMARK ENTERPRISES’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF: SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN, OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM GIVING RISE TO LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT BIZMARK ENTERPRISES’S LIABILITY TO CUSTOMER AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER, AND THAT, WERE BIZMARK ENTERPRISES TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
: Section 13.B does not apply so as to limit Bizmark Enterprises’s obligation to comply with applicable consumer guarantees under the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The liability of Bizmark Enterprises for any liability, loss, cost or damage, however caused (including by the negligence of Bizmark Enterprises), suffered or incurred by Customer because of Bizmark Enterprises’s modification of the Services or failure to comply with a consumer guarantee when providing the Services is limited to, Bizmark Enterprises (at its election): (a) resupplying that Service; or (b) paying the cost of having the Services supplied again. This Section 13.C does not apply if it is not fair or reasonable for Bizmark Enterprises to rely on it for the purposes of section 64A of the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Nothing in this Agreement purports to modify or exclude the conditions, warranties and undertakings, and other legal rights that Customer may have available under the Australian Consumer Law.
SECTION 14: TERM AND TERMINATION
The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue to apply to any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document, the Ordering Document and all non-expiring items added during the course of the Order Term, shall automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter (unless such automatic renewal is prohibit by applicable Law), unless either party gives the other notice of non-renewal at least 30 days before the end of the Order Term (or, if applicable, any renewal of the Order Term).
Either party may terminate this Agreement or any individual Ordering Document as follows: (a) for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (b) immediately if the other party: (i) terminates its business activities or becomes insolvent, (ii) admits in writing to the inability to pay its debts as they mature, (iii) makes an assignment for the benefit of creditors, or (iv) becomes subject to direct control of a trustee, receiver or similar authority. Customer agrees that Bizmark Enterprises will not be liable to Customer or to any third party for termination of Customer’s or End Client’s access to the Services resulting from any violation of this Agreement by Customer and/or End Client. Bizmark Enterprises may terminate this Agreement or any individual Ordering Document at any time in its sole discretion.
Bizmark Enterprises may suspend Customer’s account:
for non-payment or untimely authorization of payment;
at any time without notice for conduct that it believes, in its sole discretion, violates: 1) this Agreement or other agreements or guidelines which may be associated with Customer’s use of the Services; or 2) any Laws applicable to Customer’s use of the Services; or
If Customer does not log into its account for more than 700 days (“Inactive Account”). INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM BIZMARK ENTERPRISES’S DATABASE.
Upon expiration or termination of this Agreement: (a) Customer’s and End Clients’ right to use the Services shall cease, and Bizmark Enterprises will have no further obligation to make the Services available to Customer or End Clients; (b) except as otherwise expressly stated herein, all rights and licenses granted to Customer and End Clients under this Agreement shall cease; (c) Customer will pay any unpaid fees incurred by Customer and/or End Clients for the remainder of the term under any applicable Ordering Document in effect prior to the termination date; and (d) Bizmark Enterprises may delete any of Customer’s and/or End Clients’ archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer’s and/or End Clients’ data or information remain Customer’s responsibility.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections: 4 (Reselling the Services), 5 (Ownership and Intellectual Property), 6 (Confidentiality), 8 (Fees), 9 (Representations and Warranties), 10 (Third Party Applications), 11 (Disclaimers), 12 (Indemnification), 13 (Limitation of Liability), 14.D (Effect of Termination), 14.E (Survival), 15 (U.S. Federal Government End User Provisions, to the extent applicable), and 16 (General Provisions).
SECTION 15: U.S. FEDERAL GOVERNMENT END USER PROVISIONS (IF APPLICABLE)
If the end user of the Services is the U.S. federal government (including any federal agency), then the following shall apply: (a) Government technical data and software rights related to the Services include only those rights described herein; and (b) if a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Bizmark Enterprises to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. The Services and Site, including all documentation, are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, and consist of "Commercial Computer Software" and "Commercial Computer Software Documentation."
The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:
only as Commercial Items,
with the same rights as all other end users, and
according to this Agreement.
SECTION 16: GENERAL PROVISIONS
Notices to Customer will be effective when Bizmark Enterprises posts them to Customer’s account or sends them to the email address associated with a Full Access User (or Administrator, if applicable). Notices to Bizmark Enterprises will be effective when delivered to Bizmark Enterprises: Attn. Legal Notices, Bizmark Enterprises, 123 Mission Street, 26th Floor, San Francisco, CA, 94105, or any addresses as Bizmark Enterprises may later post on the Site from time to time.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No rights for third party beneficiaries are created by this Agreement.
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of Law or otherwise, without the prior written consent of Bizmark Enterprises. This Agreement may be assigned or transferred by Bizmark Enterprises without the consent of the Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Bizmark Enterprises will not be liable for any delays or failure in performance of any part of the Services, from any cause beyond Bizmark Enterprises’s control. This includes, but is not limited to, acts of God, changes to Laws, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third party internet service providers.
The Laws of the State of New South Wales, Australia, excluding its conflict of Laws rules, will apply to any and all disputes arising out of or relating to the Services or this Agreement (“Disputes”). All legal actions in connection with a Dispute under this Agreement will be subject to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded from this Agreement.
Customer and Bizmark Enterprises each agree to exclusively arbitrate any and all Disputes. Any dispute, controversy, or claim arising out of, relating to, or in connection with this contract, including any questions regarding its existence, validity, or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of arbitration shall be English.
The Services may be accessed throughout Australia and overseas. Bizmark Enterprises makes no representations that the Services comply with the Laws (including intellectual property Laws) of any country outside Australia. If Customer accesses the Services from outside Australia, it does so at its own risk and is responsible for complying with the Laws in the place where it accesses the Services.
The Services made available by Bizmark Enterprises may be subject to the export control Laws of the United States and other jurisdictions. Customer shall comply with all applicable export Laws, and, without limiting the generality of the foregoing: (a) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render it enforceable while preserving the Parties’ original intent to the fullest extent, and the rights and obligations of the parties shall be construed and enforced accordingly. If the provision cannot be modified in accordance with the foregoing, then that provision will be deemed severed from this Agreement and all other provisions will be unaffected and will remain in full force and effect.
Any waiver by Bizmark Enterprises must be in writing and signed by an authorized Bizmark Enterprises representative. No waiver by Bizmark Enterprises of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No failure or delay by Bizmark Enterprises in enforcing any right or provision under this Agreement shall be construed as a waiver of such right or provision or of any other right or provision.
The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Ordering Document.