End User License Agreement
Industry Mailout Services End User Agreement THIS END USER AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND INDUSTRY MAILOUT. BY INSTALLING AND CLICKING THE "ACCEPT" BUTTON, YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, CLICK THE "CANCEL" BUTTON. This Agreement (the "Agreement") applies to your use of the Industry Mailout Services ("IMS"), which includes Industry Mailout's services available on this website and any related products. This Agreement affects your rights and you should read it carefully. The words "you" or "your" in this Agreement means any person or entity utilizing the IMS ("IMS Users"). Unless otherwise stated, "Industry Mailout" will refer collectively to Mailout Interactive Inc. and its respective parent or subsidiary companies, affiliates, officers, employees and agents. By using the IMS as an Email Disburser you represent that you understand and accept the terms and conditions set forth in this Agreement. We may amend this Agreement at any time by posting the amended terms to our site, and any amendment shall be effective and binding upon you 10 days after it is published. If there is any conflict between the terms of this Agreement and your ASP Services Agreements, the terms of the ASP Services Agreements shall govern. 1. Eligibility. In order to use the IMS, you must enroll with Industry Mailout as an Email Disburser and agree to the terms and conditions of this Agreement. You agree that you will use the IMS only for lawful personal, business or governmental purposes. You will receive an IMS User ID and be required to establish a password upon enrolling in the IMS. You are responsible for maintaining the confidentiality of your IMS User ID and password and are fully responsible for all actions that are taken under your IMS User ID. You may not divulge your IMS User ID or password information to anyone else, nor may you use anyone else's password. Industry Mailout is not responsible for losses incurred by IMS Users as the result of their misuse of User IDs or passwords. 2. Registration Information. You agree to provide true, accurate and complete registration information and to maintain and promptly update your information as applicable. You agree not to impersonate any person or company or use a name that you are not authorized to use. If any information you provide is untrue, inaccurate, not current, or incomplete, without limiting other remedies, Industry Mailout has the right to terminate your use of the IMS and Industry Mailout, its agents, suppliers, and subcontractors have the right to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information. You authorize Industry Mailout and its agents, suppliers and subcontractors to make any inquiries they consider necessary to validate your registration. 3. Services. Subject to the terms and conditions of this Agreement, Industry Mailout shall provide the IMS to You. Industry Mailout hereby reserves all other rights in the IMS. You shall not reverse engineer or otherwise attempt to derive source code from the use of the IMS. Subject to Industry Mailout's rights in the IMS and all materials provided by Industry Mailout, You will retain all rights in any reports, databases, or other materials created by You using the Software. The IMS will be subject to the restrictions in this Section 3. The IMS allows You to set up user accounts and related user identification numbers ("User IDs") and passwords. You may allow any person designated by You to use the IMS (each, an "End User"), however, in the event You designates End Users other than Your employees, the use of the IMS by such non-employee End Users will be subject to such End User agreeing to (by "clicking through" on-line or other suitable means determined by ASP) this end user agreement. You may have only as many User IDs activated at any one time for the IMS as the number of End Users for whom You have paid. A User ID will be deemed activated when the End Users logs in to the IMS. 4. IMS Use. By using the IMS, you attest that you do not provide unlawful or illicit products or services. You will not use the IMS, the website or any of the services offered therein for any unlawful, fraudulent or improper activity. You agree that except to make send emails using the IMS, you will not use any information about other IMS Users that is provided by the IMS. If Industry Mailout has reason to believe that you may be engaging in or have engaged in fraudulent, unlawful, or improper activity, including without limitation any violation of any terms and conditions relating to the IMS, the website or any related services, your access to the website and any services contained therein may be suspended or terminated. You will cooperate fully with Industry Mailout to investigate any suspected unlawful, fraudulent or improper activity. 5. Additional Restrictions. Industry Mailout, at its sole discretion, reserves the right to restrict your use of the IMS in the event that Industry Mailout determines, in its sole discretion, that your use of the IMS is inappropriate. Reasons that Industry Mailout may determine that your use of the IMS is inappropriate include, but are not limited to, the following: 1. Unconfirmed identity or incorrect registration/enrollment information 2. You have used the IMS to commit or to facilitate fraudulent activity 3. You have used the IMS to send spam emails 4. You have used the IMS in violation of privacy or other laws and regulations 6. Fees. IMS Users are responsible for paying all fees associated with the use of the IMS under the IMS enrollment process on or before the due date for such fees. 7. No Resale of IMS. Your right to access and use the IMS is personal to you and subject to the usage license as provided under this Agreement. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the IMS, use of the IMS, or access to the IMS to any third party. 8. Security Issues or Unauthorized Transactions. You should contact us at once if you believe your IMS User ID or password has been compromised. 9. No Spam. You agree not to use unsolicited email, usenet, message board postings, or similar methods of mass messaging (spam) to communicate with other IMS Users or with any persons who have not consented to receive such communications from You. We reserve the right to immediately terminate the user account of any IMS User who sends unsolicited email to other IMS Users based on information available to Users through the IMS. In addition, you may be subject to provincial or state and/or federal penalties and other legal consequences under applicable law if you send unsolicited email. Our Anti-Spam Policy is intended to protect our users, the Internet, and us. 10. No Hacking. If you use, or attempt to use the IMS for other purposes including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of IMS, your user account will be terminated and you will be subject to damages and other penalties, including criminal prosecution where available. 11. Correct E-mail. You agree that you have access to the Internet and to a current e-mail address. You have sole responsibility for providing Industry Mailout with a correct and operational e-mail address. Industry Mailout will not be liable for any undelivered e-mail communications or any costs you incur for maintaining Internet access and an e-mail account. You must promptly notify Industry Mailout of any change in your e-mail or postal mailing address. 12. Electronic Communications. To the fullest extent permitted by applicable law, this Agreement and any other agreements, notices or other communications regarding your user account and/or your use of the IMS ("Communications"), may be provided to you electronically and you agree to receive Communications in an electronic form. Electronic Communications may be posted on the pages within the IMS and/or delivered to your e-mail address. You should print a copy of any Communications and retain it for your records. All Communications in either electronic or paper format will be considered to be in "writing," and to have been received no later than five (5) business days after posting or dissemination, whether or not you have received or retrieved the Communication. Industry Mailout reserves the right but assumes no obligation to provide Communications in paper format. Your consent to receive Communications electronically is valid until you revoke your consent by notifying Industry Mailout of your decision to do so, by sending an email message to info@industrymailout.com or by telephoning Industry Mailout Support. If you revoke your consent to receive Communications electronically, Industry Mailout may terminate your right to use the IMS. 13. Privacy. The terms of our Privacy Policy shall govern the collection, use and distribution of information related to you. You agree that you have had an opportunity to review, download or print our Privacy Policy. 14. WARRANTY DISCLAIMER. THE IMS IS PROVIDED "AS IS," AND YOUR USE OF THE IMS IS AT YOUR OWN RISK. INDUSTRY MAILOUT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INDUSTRY MAILOUT DOES NOT WARRANT THAT THE IMS WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. 15. LIMITATIONS OF LIABILITY. INDUSTRY MAILOUT WILL NOT BE LIABLE TO YOU FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF INDUSTRY MAILOUT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. INDUSTRY MAILOUT'S MAXIMUM AGGREGATE LIABILITY TO YOU RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAYABLE BY YOU TO INDUSTRY MAILOUT HEREUNDER FOR THE PRIOR TWELVE (12) MONTH PERIOD. You acknowledge that Industry Mailout has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. 16. Miscellaneous. This Agreement is made under and will be governed by and construed in accordance with the laws of the Province of Alberta without regard to the principles of conflicts of laws. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not assign Your rights or delegate Your duties under this Agreement either in whole or in part without the prior written consent of Industry Mailout. Any attempted assignment or delegation without such consent will be void. Industry Mailout may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns. Industry Mailout and You are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Industry Mailout and You. Neither Industry Mailout nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
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