VerticalResponse® Terms of Service

Effective date: March 7, 2014

VerticalResponse, Inc. (“VerticalResponse”) provides a collection of tools and resources to create, launch, and manage online email marketing campaigns (the "Email Services") and social media marketing campaigns ("Social Media Services"). The Email Services and Social Media Services are collectively referred to as the “Services”. The following are the terms and conditions for use of the Services by the person or persons accessing this application ("you" or the “Customer”), or any of VerticalResponse's affiliates or partners that have authorization to sublicense or provide the Services, along with any amendments thereto and any operating rules or policies that may be published from time to time by VerticalResponse.

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE OR ANY OTHER AFFILIATED WEB SITE. BY USING THIS APPLICATION OR ANY OTHER AFFILIATED APPLICATION, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THIS WEB SITE OR ANY OTHER AFFILIATED WEB SITE.

  1. Services and Support
    1. The Services are provided subject to the following terms and conditions ("Terms of Service") and any operating policies that VerticalResponse may establish from time to time, including its Postcard Terms of Service, Privacy Policy and Anti-SPAM Policy posted at www.verticalresponse.com (collectively, the “Agreement”). VerticalResponse may make changes to the Agreement, and continued use of the Services constitutes Customer’s acceptance of any such changes. In addition, when using particular VerticalResponse Services, Customer and VerticalResponse shall be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time...
    2. The Services are available only to persons who can form legally binding contracts under applicable law. If you are using the Services as an employee on behalf of an employer, you must have the authorization to bind your employer by your use of the Services. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify to use the Services, please do not use the Services.
    3. The Services provide corporate web sites, small business web sites, and community sites the tools to sign up web site visitors, collect and retrieve visitor sign-up data, develop and execute simple interactive marketing communications with visitors, manage and measure social media marketing efforts, and obtain customer feedback through the use of web forms.
    4. Customer must complete a registration form in order to use the Services. Customer will provide true, accurate, current, and complete information about Customer as requested in the registration form, and will update the information to keep it current. As part of the registration process, Customer will provide, at a minimum, an email address and password for Customer’s VerticalResponse account. Customer is responsible for maintaining the security of the Customer account, passwords, and files, and for all uses of Customer’s account and of the Services in Customer’s name. At its sole discretion, VerticalResponse reserves the right to refuse registration of accounts, or cancel an existing account, that it deems to be inappropriate.
    5. By signing up for the Service, Customer consents to receive, at the Customer provided telephone number, live and/or pre-recorded messages from or on behalf of VerticalResponse regardless if such phone number is or becomes part of any State or Federal “Do Not Call” list. Customer has the ability to opt out at any time. Customer acknowledges that the information they provide is accurate and their own.
    6. From time to time, VerticalResponse may amend the Agreement, in its sole discretion, by posting updated versions of the Agreement at www.verticalresponse.com or by notifying Customer by other means. All such modifications to the Agreement shall become effective upon the earlier of the posting of the revised Agreement to www.verticalresponse.com or by the receipt of notification of a change to the Agreement by the Customer.
  2. Restrictions and Responsibilities
    1. This is an Agreement for use of the Services, and Customer is not granted a license to any software by this Agreement. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any software, documentation, or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party unless specifically authorized by VerticalResponse in writing; or remove any VerticalResponse branding, proprietary notices or labels.
    2. Customer represents and warrants that Customer will use the Services only for lawful purposes and only in compliance with these Terms of Service, VerticalResponse’s Privacy Policy and Anti-Spam Policy as published at www.verticalresponse.com or otherwise furnished to Customer and all applicable laws (including, but not limited to, policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws).
    3. Customer may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. Customer may only use permission based lists. A permission based list is defined as a list in which each entity on the list is a person or organization that has explicitly granted their permission to receive emails or other communications from Customer. Customer is solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. VerticalResponse, in its sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under the Agreement. VerticalResponse may terminate Customer’s use of the Services if VerticalResponse determines that the level of spam complaints is higher than industry norms.
    4. Customer agrees that each email sent by Customer in connection with the Services shall contain the VerticalResponse “unsubscribe” link that allows a recipient to remove themselves from Customer’s mailing list. Customer is prohibited from mailing to any recipient who has clicked on the unsubscribe link. Customer shall process all unsubscribe requests received by any means including but not limited to email, phone call, postal message, within ten (10) days of request by a Customer’s email recipient. Failure to comply with this requirement may result in a termination of Customer’s account by VerticalResponse, and all payments previously paid to VerticalResponse shall be forfeited by Customer at the time of termination.
    5. Customer agrees that each email sent by Customer in connection with the Services shall contain a link to the then current Permissions Policy, unless Customer has obtained specific authorization from VerticalResponse to remove such link. Failure to comply with this requirement may result in a termination of Customer’s account by VerticalResponse.
  3. Copyright and Content Ownership
    1. Customer is responsible for any and all information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services posted or made available to others through Customer's account and for any and all activity occurring on Customer's social media account, whether posted by Customer or posted by others who have accounts under Customer's account (collectively, "Content"). VerticalResponse will not be held responsible for Customer's use of the Services or for any such Content.
    2. VerticalResponse claims no intellectual property rights over the Content Customer provides to the Service. Customer's profile and Content remain Customer's. However, Customer agrees to allow others to view and share its Content upon signing up for the Service. By making Customer's Content available to others through the Services, Customer grants VerticalResponse a worldwide, non-exclusive, royalty-free, fully paid up license (with a right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content through any or all media or distribution methods (whether now known or hereinafter developed). VerticalResponse does not pre-screen Content, but VerticalResponse and/or its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
    3. The look and feel of the Service is copyrighted by VerticalResponse, Inc. All rights reserved. Customer may not duplicate, copy or reuse in any manner any portion of the Service's HTML, CSS, Javascript or visual design elements without express written permission from VerticalResponse.
  4. Third Party Websites and Services
    1. The Services include social media tools that allow Customer to manage, access and post Content on social network platforms (e.g., LinkedIn, Facebook and Twitter). These tools also allow Customer to use the Services to access and analyze information found on social media sites.
    2. VerticalResponse's website may contain links to websites that are controlled by third parties and access to certain third-party services, which may include, without limitation, social bookmarking services, social network platforms, payment processing services or similar services (each, a "Third Party Service"). Vertical Response may use Google Analytics or other providers (also each a "Third Party Service") to help understand Customer's use of the Services. Third Party Services may collect information sent by Customer's browser as part of a web page request, including cookies, Customer's IP address and session testing services. Use of this information is governed by the privacy policies of such Third Party Services.
    3. VerticalResponse is not affiliated with or responsible for the content, action or performance of any Third Party Service and Customer uses such Third Party Services at its own risk. Any Third Party Service is independent from VerticalResponse and VerticalResponse has no control over, and assumes no responsibility for, the content, privacy policy, terms of use and practices of the Third Party Service. Customer should review the Third Party Service's applicable terms of service and policies before proceeding
    4. By posting a link to a Third Party Service, Customer acknowledges and agrees that: (a) Customer is complying with the relevant terms and conditions of the Third Party Service to which Customer is linking, (b) the Service may present the target site within a frame, and that the frame may contain advertising and tools related to the Service, and (c) VerticalResponse is not responsible or liable for: (i) the availability or accuracy of Third Party Services; or (ii) the content, products, or services on or available from such Third Party Service. Customer acknowledges sole responsibility for and assumes all risk arising from Customer's use of any such Third Party Service.
    5. VerticalResponse may terminate any Third Party Service’s ability to interact with the Services at any time, with or without notice, and in VerticalResponse's sole discretion, with no liability to Customer or to the third party. Any Third Party Service may take actions to impact VerticalResponse's ability to make available some or all of the features of the Services at any time, with or without notice, and VerticalResponse will not be liable to Customer or to the third party for any such actions. VerticalResponse accepts no responsibility for the quality, content, policies, nature or reliability of, any Third Party Services.
    6. In order to use features of the Services, Customer must have access to a valid email or social networking account. Customer is solely responsible for paying any third-party fees associated with such service providers. Customer further agrees that the ability to use features of the Services may be subject to subscriber terms of use, contracts, capacity charges and/or other expenses established and enforced by Customer's applicable service providers, all of which are Customer's sole responsibility.
    7. In no event shall any reference to any third party, third party product or Third Party Service be construed as an approval or endorsement by VerticalResponse of that third party or of any product or service provided by such third party.
    8. VerticalResponse may allow third party ad servers or ad networks to serve advertisements on the Service. These third party ad servers or ad networks use technology to send, directly to Customer's browser, the advertisements and links that appear on VerticalResponse's site. These third party ad servers or ad networks automatically receive Customer's IP address when this happens. They may also use other technologies (such as cookies, JavaScript, or web beacons) to measure the effectiveness of their advertisements and to personalize the advertising content. VerticalResponse does not provide any personally identifiable information to these third party ad servers or ad networks without Customer's consent. However, if an advertiser asks VerticalResponse to show an advertisement to a certain audience and Customer responds to that advertisement, the advertiser or ad server may conclude that Customer fits the description of the audience they are trying to reach.
    9. Subject to these Terms of Service, Customer may upload images (individually, an "Image" and collectively, the "Images") hosted by VerticalResponse into their email messages, postcards, or social posts, (collectively, "Messages"). See the Postcard Terms of Service that specifically addresses VerticalResponse’s policies regarding postcard campaigns. Any Images hosted by VerticalResponse are only to be used in conjunction with the Services, and Customer is expressly prohibited from using the Images for any other purpose.
    10. Customer is prohibited from using Images within a Message to:
      • Sublicense, distribute, transfer or assign any Images in connection with any other product except for a VerticalResponse Message;
      • Reverse engineer, decompile, translate or dissemble any part of the Images;
      • Remove any copyright notices, trademarks or watermarks from any place where it appears on the Images;
      • Use the Images as part of another trademark, service mark or logo;
      • Use the Images in any way that could be considered by a reasonable person to be defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to them, in the juxtaposition to accompanying text or images or otherwise;
      • Use the Images in a manner that includes people as part of any sensitive subject matter, which shall be determined by VerticalResponse in its sole discretion. Example of sensitive subject matters include, but are not limited to, mental and physical health issues, sexual activity or preferences, substance abuse, guns and weapons, crime, suicide, abortion, hate groups, political or religious fanaticism, etc.
    11. For every Message sent or delivered in connection with the Services, Customer acknowledges and agrees that the Services shall automatically add a VerticalResponse identifying brand attribution stating “Delivered by VerticalResponse®” or a similar message consisting of images, text, hyperlinks or other media in the footer or other similar location, unless Customer has obtained written authorization from VerticalResponse to remove such identifying elements.
    12. In using the varied features of the Services, Customer may provide information (such as name, contact information, or other registration information relating to either the Customer or Customer’s employer) to VerticalResponse. VerticalResponse may use this information and any technical information about Customer’s use of this web site to tailor its presentations to Customer, facilitate Customer’s movement through the Services, or communicate separately with Customer or may be used for VerticalResponse's publicity purposes. If Customer accessed the Services through a partner or affiliate of VerticalResponse, all Customer information obtained by such partner or affiliate may be shared with VerticalResponse. VerticalResponse may also share any Customer information with such partners or affiliates. VerticalResponse will not provide information to companies Customer has not authorized, and VerticalResponse will not permit the companies that get such information to sell or redistribute such information without Customer’s prior written consent.
    13. Customer hereby agrees to defend, indemnify and hold harmless VerticalResponse and its business partners, third party suppliers and providers, licensors, officers, directors, employees, distributors and agents from and against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises in any way from (a) an actual or alleged violation of the Agreement or (b) Customer’s use of the Services. Although VerticalResponse has no obligation to monitor the content provided by Customer or Customer’s use of the Services, VerticalResponse may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the Agreement.
    14. Customer shall not use the Services in any manner (including, without limitation, the transmission of third party content or information) that may violate or infringe upon any rights of a third party. Customer shall be subject to the indemnification provisions in these Terms of Service if Customer’s use of the Services violates or infringes upon such rights.
    15. Customer shall be solely responsible for securely maintaining its user name, password and other account information. VerticalResponse may follow the instructions of any person who represents he is authorized by the Customer to use or make any changes to the account, provided such person delivers the correct user name and password. VerticalResponse shall have no liability to Customer for any unauthorized use of Customer’s account or the services provided hereunder.
  5. Types of Service Plans
    1. Customer may choose to purchase the Services on either a pay as you go plan ("PAYG Plan") or a subscription pricing plan ("Subscription Plan").
    2. The PAYG Plan enables Customer to purchase a specified number of credits ("Credits") to use in connection with the Services. The pricing, features, entitlements, and expiration dates for the PAYG Plan are described in the price list. Customers on a PAYG Plan may use email credits from the date of purchase up to and including the expiration date. After the expiration date has passed, all unused Credits will automatically expire, and Customer shall not be entitled to a refund of unused Credits nor shall Customer have the right to an extension of time in order to use such unused Credits.
    3. The Subscription Plan offers a Customer the Services based on a periodic flat fee described in the price list. The charges may be based upon the number of unique email addresses contained in Customer's account, and the corresponding pricing tier into which such number falls, and entitlements to other features and services. In the event that Customer exceeds the set usage limitations, VerticalResponse reserves the right to immediately disable or impose restrictions on Customer's account and/or upgrade Customer to a different monthly subscription plan until Customer complies with the restrictions, as determined by VerticalResponse in its sole discretion.
    4. Customers may elect to switch from their original chosen pricing plan (either the PAYG Plan or the Subscription Plan) to the other pricing plan at any time (e.g., if you start with the PAYG Plan, you may switch to the Subscription Plan and vice versa). However, additional fees will apply if Customer subsequently switches back to its original plan. If a Customer has originally chosen the PAYG Plan, it must use all existing Credits prior to switching into the Subscription Plan or it may forfeit those unused Credits.
    5. Certain Customers shall be entitled to use the Services on a free basis as specified on the web site when Customer agrees to the use of the Services. A Customer who uses the Services on a free basis shall be bound by the Agreement. Provided Customer doesn't exceed the entitlement limits, Customer shall have the entitlements specified in the price list to use the Services on a free basis. If such limits are exceeded, Customer may convert to a PAYG or Subscription Plan plan and be subject to the payment terms for those plans as outlined below shall pay for the Services according to the applicable price list. One person or legal entity may not maintain more than one free account. Technical support may not be available for free accounts.
  6. Payment Terms
    1. Payment for Services shall be made in advance with any valid credit card or other form of payment (e.g., PayPal, wire transfer) that is accepted by VerticalResponse. VerticalResponse may also accept ACH debits from Customer bank accounts. Checks will only be accepted for prepayments of Services upon approval by VerticalResponse. All payments shall be made in U.S. dollars. Customer hereby authorizes VerticalResponse to keep Customer credit card or Customer bank account information on file and charge such credit card or debit such bank account for the continuing usage of existing Services or the future usage of the Services until such time as your account is terminated. Customer’s account will be disabled if VerticalResponse is unable to charge Customer’s credit card for Services rendered or future Services purchased. VerticalResponse will attempt to notify Customer of its intent to suspend access to the Services prior to such suspension taking effect.
    2. Access to the Services shall be enabled once Customer remits payment. Access to the Services shall be disabled should Customer become delinquent in paying the subscription fees if Customer is purchasing Services on a Subscription Plan. If Customer is on a monthly Subscription Plan, Customer hereby authorizes VerticalResponse to charge its credit card for such amounts on a regular monthly basis and continuing until such time Services are terminated. Customer's credit card will be charged on approximately the same day of each subsequent month following the initial subscription commencement date. If Customer is on a prepaid Subscription Plan, the plan will automatically renew under the same term as the previous plan and Customer's credit card will be charged on the first day following the expiration of the previous plan. If VerticalResponse modifies its pricing structure, VerticalResponse will use reasonable efforts to notify Customer prior to automatically renewing a prepaid plan.
    3. The price list and entitlements for the Services is posted on our Web site at www.verticalresponse.com. Prices and entitlements may change at any time at VerticalResponse’s sole discretion. Customer is responsible for understanding what current prices and entitlements are in effect at all times. VerticalResponse will use reasonable efforts to notify Customer of any changes to the price list and entitlements prior to such changes taking effect. All fees are exclusive of all taxes, levies or duties imposed by taxing authorities and Customer shall be responsible for payment of all such taxes, levies or duties. VerticalResponse reserves the right to collect such fees from Customer at its discretion or where required by law.
  7. Termination
    1. Customer may terminate the Services and these Terms of Service at any time by sending an email message to support@verticalresponse.com or by sending written notice to, VerticalResponse, Inc. at 50 Beale St., 10th Floor, San Francisco, CA 94105 USA.
    2. VerticalResponse may terminate these Terms of Service or the Services at any time with or without cause, and with or without notice. VerticalResponse shall have no liability to Customer or any third party because of such termination. Upon termination by either party, no payments from Customer held by VerticalResponse shall be refunded at the time of termination and Customer shall have no recourse against VerticalResponse in relation to non-refunded funds, unused Credits (as defined below) or time left related to subscriptions.
    3. Upon termination for any or no reason, VerticalResponse may delete any Customer archived data within 30 days after the date of termination. All sections of these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, indemnity, warranty disclaimers and limitations of liability. Additional fees may apply to Customers who choose to terminate their subscription pricing plan and subsequently choose to reactivate their account under a new subscription pricing plan.
    4. At any time after the date of commencement of the Services by Customer, if Customer has not sent a Message under a pay as you go pricing plan ("PAYG Plan") for more than thirty (30) consecutive days, the account may become inactive. A Customer who is on a subscription pricing plan will be deemed to be inactive when the end of their subscription period has lapsed and no further payments are remitted to VerticalResponse to continue the Services. When an account is classified (at VerticalResponse’s sole discretion) as inactive, VerticalResponse will use reasonable efforts to notify Customer by email. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING BUT NOT LIMITED TO CONTACTS, MESSAGES, AND CAMPAIGN RESULTS, MAY BE PERMANENTLY REMOVED FROM THE VERTICALRESPONSE DATABASE.
    5. Customers on a PAYG Plan may use email credits from the date of purchase up to and including the expiration date. After the expiration date has passed, all unused Credits will automatically expire, and Customer shall not be entitled to a refund of unused Credits nor shall Customer have the right to an extension of time in order to use such unused Credits.
  8. Prohibited Content
    1. Customer is prohibited from sending email messages with content that is of the following nature:
      • Messages that are in any way illegal such as sales of illegal substances, solicitation of escort services, or sales of any products or services that cannot be legally sold by Customer;
      • Pornographic messages;
      • Grossly offensive messages such as messages promoting hatred, bigotry, intolerance of religious beliefs, racism or any other messages that VerticalResponse, at its sole discretion, may deem to be offensive;
      • Includes images that are not expressly authorized by either VerticalResponse or the owner of such images;
      • Introduces any computer viruses, worms or software code that is detrimental to Customer’s recipients;
      • Any messages that includes spam (See VerticalResponse’s Anti-Spam Policy); or
      • Any messages that are in any way prohibited by applicable law, would constitute a violation of applicable law or be inconsistent with community standards in any jurisdiction in which the recipient resides.
  9. Warranty Disclaimer

    CUSTOMER USES THE SERVICES AT ITS OWN RISK. VERTICALRESPONSE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND VERTICALRESPONSE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
  10. Limitation of Liability

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, VERTICALRESPONSE AND ITS SUPPLIERS, DIRECTORS, OFFICERS, AFFILIATES, INSURERS, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF VERTICALRESPONSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR FRAUD OR WILFUL MISCONDUCT, VERTICALRESPONSE’S AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIMS OF ANY TYPE OR NATURE HEREUNDER SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY CUSTOMER TO VERTICALRESPONSE DURING THE TWELVE MONTHS PRIOR TO SUCH CLAIM.
  11. Export of Services or Technical Data

    Customer may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
  12. Miscellaneous
    1. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable.
    2. Both parties agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of hereof, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
    3. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind VerticalResponse in any respect whatsoever.
    4. These Terms of Service and Customer's use of the Services may not be assigned, sublicensed or otherwise transferred by Customer without VerticalResponse's prior written consent.
    5. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover its costs and attorney’s fees, in addition to all other damages provided by applicable law.
    6. This Agreement shall be governed by the laws of the State of California, USA without regard to its conflict of laws provisions. All legal actions or claims in connection with this Agreement shall be brought in the state or federal courts located in San Francisco, California, USA.

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