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TNTMD
TNT Marketing and Design Corp. Email Marketing Terms of Use
IMPORTANT - READ CAREFULLY: These "Terms of Use" (referred hereafter as “Agreement”) constitutes a legal agreement between you and TNT Marketing and Design, Corp. a San Diego Corporation, (referred hereafter as "TNTMD" "we," or "us"). You are a customer (referred hereafter as “Client”) or will become a Client if you agree to our Terms of Use by signing below). The "Term" is the time during which you are entitled to use our web platform to create and send out electronic newsletters and other digital content. If an individual purports, and has the legal authority, to sign these Terms of Use electronically on behalf of an employer or client, "you" refers to the employer or client. If not, "you" refers to the individual signing hereon. You are responsible for assuring that all the terms and conditions of this Agreement are complied with. By signing the TNTMD Email Marketing Agreement(“EMA”) you will be agreeing to the terms of this Agreement.
Terms of Use
Part 1
(Applies to All Client of TNTMD)
1.    Purpose : The purpose of these Terms of Use (this "Agreement") is to set forth the terms and conditions under which you are permitted to use our email/electronic newsletter creation, distribution and management system (the "Services"). Any email, including but not limited to any email newsletters, sent out using the Services, are referred to herein as an "Email."
2.    Changes : We reserve the right to change any of the terms of this Agreement by posting the revised Terms of Use on our Website and/or by sending an email to the last email address you have given to us. Unless the Term is terminated within ten (10) days, this new Agreement will be effective immediately with respect to any continued or new use of the Services.
3.    Charges and Payments :
Monthly Plans
 4.1 Our charges for monthly plans are emailed upon requested.  Our rates and fee structure is individually determined by our resource allocation.  Payments are due for the full month for which any part of the month is included in the "Term." Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the "Pay Date"). For any month for which you have already paid, for which you increase either your number of email addresses or the number of Emails you send out to an amount that causes you to go to another pricing level, except as otherwise provided in this Agreement, you will be required to pay at the higher level on or before the Pay Date for the following month. If the Term ends before such payment is due, you will still be required to make one payment at the higher level.
4.2 As long as you are a Client or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
4.3 Whenever you increase the number of email addresses you are using or the number of Emails that you are going to be sending so that you are at a more expensive level, we may, at our sole discretion, require you to pay the difference in the monthly payment before the next Email is sent out.
Refunds
4.4 We are required to provide a refund only if we terminate our Services to you without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations subject to any Client seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.
5.    Term, Termination and Removal : Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro-rated portion of your monthly prepayment if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as you’re using our system to send bulk Emails to people with whom your relationship does not meet the requirements of 14(b) below. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage.
6.    Account and Password : You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
7.    Proprietary Rights Owned by Us : You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
8.    Proprietary Rights Owned by You : You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
9.    General Rules : You agree to the following:
You will not incorporate into your Email Campaigns any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email Campaigns or you are not otherwise permitted to use.
You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
You will not share your password.
You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.
You will not set up multiple accounts for any individual, organization or entity or in order to send substantially similar content unless you are part of a franchise, distributorship, or dealership.
You will not import or incorporate into any lists, emails or uploads to our servers any of the following information: Social Security Numbers, passwords, security credentials, or sensitive personal information of any kind.

10.    Anti-Spam and Abuse Related Rules : You agree to the following:
Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website at http://www.spamhaus.org/definition.html The first line of the Spamhaus definition reads:
The word "Spam" as applied to Email means Unsolicited Bulk Email ("UBE").
It is a concern to us if you use Us to send any unsolicited email to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP's, for you to send an unsolicited email to an entire list of people you don't know.
Permission Lists Only: You may use Us only to send Emails to individuals and entities that either:
 Possibility 1 - Consent Obtained
A. gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:
Consent Given Recently gave you the permission within the prior 12 months; or
Consent Given More Than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months; or
Possibility 2 - Sold or Negotiated to Sell Product or Service
B. gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months.
If you send Emails to a list, and you get an unusual amount of SPAM complaints ISPs will begin blocking future emails from your company. They will also request that We shut down your account. So if you don't have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don't import them.
You should only use Us to send newsletters, updates, and promotions to people who specifically requested email from you, or otherwise meet the requirements of 10(b) above. Don't have a permission list yet? No problem.  Our system allows you to put a signup form on your site tied to individual lists and a CRM to send out automated opt-in requests.  We can help you grow your list.
Prohibited Content and Industries
Don't use Us to send anything offensive, to promote anything illegal, or to harass anyone. Generally speaking, if you're in an industry that is frequently associated with spam, you know who you are. We make no judgments about your line of business, but we cannot afford to risk our deliverability. In fact, most ESPs will not be able to help you. You will most likely need to look into setting up your own mail servers. The term to search on is "email delivery server." There are many industrial strength MTAs to choose from with built-in delivery and reporting tools for high-volume senders.
Fees, Refunds, Account Suspensions, Etc.
You agree:
0.    We reserve the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
1.    If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
2.    If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.
3.    You agree to pay for all emails you send from your account, even if messages are blocked by any third party (we have no control over your recipients' email servers, ISP availability, personal spam filter settings, etc)
Avoiding Spam Related Problems
As an email marketing service provider, we feel it's our duty to be extra vigilant about preventing spam related abuses. It's not just bad for the Internet community in general—if illegal and/or abusive spam gets sent from our system, we'd get blocked by all major ISPs, which would make our system useless for others.
It's in our best interest to keep our system clean, because our reputation and deliverability depends on it. So here's what we do:
Right to Review Email Campaigns
We, including our employees are permitted to copy and transmit copies of the content from your email campaigns to help us more efficiently spot problem accounts and to use such Tools, together with personal viewing by employees to uncover Clients who violate either these Terms of Use or applicable law.
When a recipient clicks their "this is spam" button in their email program, a FBL report is sent to us. We analyze the data, trace it back to the sender that caused the complaint, remove the complainer from the sender's list, and track future complaints about that campaign. If complaints exceed a reasonable threshold based on list size, we may have to take appropriate action (which sometimes means permanently shutting down your account) to keep our servers clean and off blacklists. To prevent this from happening to you, please read section 10(d)(e) and (f) above.
11.    No Warranties : to the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
12.    Limitation of Liability : to the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.
13.    Indemnity : You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.
14.    Liquidated Damages : The parties agree that we may recover liquidated damages, in lieu of any other damages that may have been recoverable, for certain types of breaches of these Terms of Use, which we refer to as "Abusive Conduct." Liquidated damages are being made available for specified situations in which proving the actual damages would likely be impossible. The liquidated damages are being set at a reasonable pre-estimate of the damages that would be incurred as a result of the particular type of breach. The particular type of breaches that constitute Abusive Conduct, and the liquidated damages for each type are as follows:
Abusive Conduct    
violations of provisions of this Agreement designed to avoid Us being viewed as a source of spam such as sending Emails to people who have not consented to receiving bulk emails from you in the immediately preceding 12 months and to whom you are not otherwise authorized to send Emails under 10(b) above; sending Emails offering the types of products or services set forth in 11(f) above; or sending Emails that include false or misleading headings or other content or otherwise violate anti-SPAM laws, i.e., laws that restrict and regulate the sending of bulk emails.    
15.    Attorney Fees : In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney's fees in addition to any damages or other relief which we may be awarded.
16.    Disclaimers : We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.
17.    Assignments : You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.
18.    Compliance With Law : In using the Services, you agree that you will comply with all applicable laws.
19.    Applicable Law and Jurisdiction : This Agreement will be governed by the laws of the State of California. Except as otherwise provided in this Section below, each of the parties does hereby agree that any dispute related to this Agreement, any other agreement between the parties, the Privacy Policy or the Services, will be decided by the state and federal courts located in San Diego County, California and agrees that that party is subject to the jurisdiction of such courts in such locality. If, under applicable law relating to the selection of venue in California, a case may not be brought in a court located in San Diego County, the case may be filed in a state or federal court of competent jurisdiction located in the State of California where the case may be brought.
Part 2
(Additional Provisions Applicable to All Clients)
•    20. Miscellaneous
20.1 Force Majeure : We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the internet or any third party internet service providers.
20.2 Survivability : The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.
20.3 Severability : The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
20.4 Interpretation : The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.
20.5 Amendments : No amendment or other change of this Agreement shall be effective except as either expressly permitted under these Terms of Use or agreed to in writing between the parties. Notwithstanding the foregoing, additional terms may be required for certain features of the Service (the "Additional Terms.") The Additional Terms shall be considered incorporated into this Agreement at the time the feature is activated by you. Where there is a conflict between these Terms and the Additional Terms the Additional Terms shall control.
20.6 Privacy Policy : You agree that we may access, collect, use and disclose your information as set forth in our Privacy Policy. In this regard the terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties hereto.
20.7 Further Actions : You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
20.8 Notification of Security Breach : In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a "List"), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
20.9 Amendments : No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.
20.10 Notices : Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website.
20.11 No Changes in Agreement at Request of Client : We cannot, as a practical matter, change this Agreement for any one client or group of clients. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.
20.12 Entire Agreement : The terms of the Privacy Policy posted on this Website are incorporated by reference herein. This Agreement, including such policy which is incorporated by reference herein, embody the entire agreement and understanding of the parties, and supersedes all prior agreements, representations and understandings between the parties hereto, relating to the subject matter hereof.

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