Effective date: Sep 19, 2018
Deluxe Small Business Sales, Inc., a Minnesota corporation, owns and operates VerticalResponse.com (“We or Us”, “VerticalResponse” or this “Website”). VerticalResponse offers a suite of tools and resources that enable you to create, launch and manage online email (the "Email Services") and social media marketing campaigns ("Social Media Services" and, collectively with the Email Services, the “Services”). The Services provide you with the tools to enroll visitors to your website into your marketing programs, collect and retrieve sign-up data regarding visitors to your site, develop and execute simple interactive marketing communications, manage and measure social media marketing efforts and obtain customer feedback. From time to time, We may make new features and services available to you. These Terms of Service will apply to your use of any new features and services. We may also impose additional terms and conditions associated with the use of any new features and services. The following are the terms and conditions applicable to the use of the Services by you ("you" or the “User”).
VerticalResponse Terms of Service
Please read these terms and conditions (the “Terms of Service”) of use carefully. These Terms of Service may have changed since your last visit to this Website. By using the Services, you indicate your acceptance of these Terms of Service. If you do not wish to accept these Terms of Service, then do not access or use the Services.
- Services and Support
- The Services are available only to persons who can form legally binding contracts under applicable law. If you are using the Services on behalf of your employer, you must have the authority to bind your employer by your use of the Services. The Services are not available to individuals under the age of 18. If you do not qualify to use the Services, do not use them. If you are based in Cuba, Iran, North Korea, Syria or any other country subject to a U.S. Government embargo, you may not use the Services.
- You must provide true, accurate, current and complete information about you or your organization when you sign up for the Services and you must update your information to keep it current. As part of the sign-up process, you must provide, at a minimum, an email address and password for your VerticalResponse account (your “VR Account”). In order to use the Services, you must have access to a valid email or social networking account. You are responsible for maintaining the security of your VR Account name and password. We may follow the instructions of any person who represents that he or she is authorized by you to use or make any changes to your VR Account if such person provides Us with the correct user name and password for your VR Account. You are responsible for all uses of your VR Account even if you did not authorize the activity in question. You must notify Us immediately if you become aware of any unauthorized access to or use of your VR Account. We are not responsible for any losses you may incur due to stolen or hacked passwords or access to your VR Account occasioned by your negligence or any failure by you to abide by these Terms of Service or any Policy.
- Restrictions and Responsibilities
- You may not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms associated with the Services or any software, documentation or data related thereto (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) resell or redistribute the Services or Software under any circumstances, including timesharing or service bureau purposes or otherwise use the Services for the benefit of a third party, unless specifically authorized by VerticalResponse in advance in writing; or (iv) remove any VerticalResponse branding or proprietary notices or labels. You may not duplicate, copy or reuse in any manner any portion of the Service's visual design elements without express written permission from Us.
- Your use of the Services must comply with all applicable laws and regulations and must be in compliance with these Terms of Service and any applicable Policies. Without limiting the generality of the foregoing, you hereby agree that:
- We may terminate your use of the Services if We determine that the level of spam complaints We receive as a result of your use of the Services is higher than what We believe to be industry norms.
- Each Message sent by you in connection with your use of the Services must contain our “unsubscribe” link that enables a recipient to remove themselves from your mailing list. You may not send additional Messages to any person who has clicked on the unsubscribe link. You must process all unsubscribe requests received by any means including, but not limited to, email, phone call or mail, within ten (10) calendar days of request therefor.
• You will only use permission-based lists in connection with your use of the Services, meaning that your lists must consist entirely of persons or organizations that have explicitly agreed to receive emails or other communications from you.
• You will 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.
• You will not use the Services to send any email messages, postcards, social posts or other electronic communications of any nature (collectively, “Messages”) prohibited by Section 8 of these Terms of Service.
- Copyright and Content Ownership
- You are responsible for any and all information, text, graphics, photos or other materials uploaded, downloaded, posted or made available to others in Messages transmitted by you through your use of your VR Account and for any and all activity occurring on any of your social media accounts, whether posted by you or by others (collectively, "User Content"). You are solely responsible for any User Content and you represent and warrant that you either own or have permission to use all of the User Content you send Us in connection with your use of the Services.
- You (or your licensors) will retain any intellectual property rights associated with your User Content. However, by using the Services to make User Content available to others, you grant us 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 User Content through any or all media or distribution methods (whether now known or hereinafter developed) in connection with our provision of the Services to you.
- Third Party Websites and Services
- The Services may allow you to manage, access and post User Content on social network platforms. The Services may also allow you to access and analyze information associated with persons who access and view User Content posted on social media sites.
- We are not affiliated with or responsible for the content, practices or performance of any Third Party Service provider and if you use any Third Party Services, you do so at your own risk. We do not approve or endorse any third parties. You are solely responsible for paying any fees associated with your use of Third Party Services and for complying with the terms and conditions of use applicable to any Third Party Service used by you.
- By posting a link to a Third Party Service in Messages sent using the Services, you acknowledge and agree that you are complying with the terms and conditions applicable to the Third Party Service to which you are linking.
- We do not guarantee that any given Third Party Service will be available at any given time and We may terminate any Third Party Service provider’s ability to interact with the Services at any time, with or without notice.
- If you are a U.S.-based customer, We may place third-party pixels that fire advertising network cookies in emails We broadcast on your behalf. The cookies and pixels may contain pseudonymous information about email recipients to provide them with targeted advertisements. If for any reason you do not want such cookies or pixels to be placed in emails, you can opt-out by emailing Us at [email protected].
- Subject to these Terms of Service, you may upload images (individually, an "Image" and collectively, the "Images") hosted by Us into your Messages. See the See the Postcard Terms of Service, which specifically addresses our policies regarding postcard campaigns. Any Images hosted by Us are only to be used in conjunction with Messages sent by you using the Services, and you are expressly prohibited from using the Images for any other purpose.
- In addition, you are prohibited from:
- For every Message sent using the Services, you acknowledge and agree that We may add a brand attribution message such as “Delivered by VerticalResponse®” or a similar message consisting of images, text, hyperlinks or other media in the footer or other similar location. We may, but are not obligated to, remove these brand attribution messages if you request.
- If you access the Services through a partner or affiliate of ours, all of the information about you that is obtained by such partner or affiliate may be shared with Us.
• Sublicensing, distributing, transferring or assigning any Image or using an Image in connection with any other product or service other than a Message sent using the Services.
• Reverse engineering, decompiling, translating or dissembling any part of the Images.
• Removing any copyright notices, trademarks or watermarks from any Image or relocating any such notice, trademark or watermark within an Image.
• Using the Images as part of another trademark, service mark or logo./p>
• Using 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 changes to the Image or juxtaposing it with supplemental text or Images.
• Using 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.
- Types of Service Plans
- New users of the Services that sign up after September 19, 2018 can use the Services on a limited basis during a free trial period that runs for 60 days from the first time they sign up for the Services. During this trial period, you can send up to 4,000 emails per month to up to 300 contacts1. Customer support is not available while you are on the free trial plan. You may not enroll in the free trial plan more than once. If you have ever used any of the Services, you are not eligible for the free trial plan.
- We also offer a pay as you go plan ("PAYGo Plan") and subscription based plans (each, a "Subscription Plan"). The PAYGo Plan enables you to purchase a specified number of credits ("Credits") to use in connection with the Services. If you choose the PAYGo Plan, you may use your Credits for one year after their date of purchase. After this expiration date, all unused Credits will automatically expire and you will not be entitled to a refund of any amounts paid for them. In addition, if you switch from the PAYgo Plan to a Subscription Plan, your unused Credits will automatically expire and you will not be entitled to a refund of any amounts paid for them or any credit towards the fees applicable to your Subscription Plan.
- The Subscription Plans offer you the opportunity to use the Services based on a monthly fee described in the price list. The fee is based upon the number of unique email addresses contained in your VR Account and whether you subscribe to various ancillary features and services. Your use of our standard Subscription Plans allows you to send an unlimited number of Messages to up to 40,000 unique addresses. If you wish to send Messages to more than 40,000 recipients, contact Us at 1-866-683-7842 or email Us at [email protected] for a custom quote. Additional fees may apply if you terminate a Subscription Plan and subsequently choose to reactivate your VR Account under a new Subscription Plan.
- You may switch between the PAYGo Plan and a Subscription Plan or between Subscription Plans by contacting customer service by phone at 1-866-683-7842 or by email at [email protected]. If you switch between Subscription Plans, We will apply a pro-rated portion (based on the number of days elapsed in the relevant month prior to the date you changed Subscription Plans) of the monthly fee paid in respect of your original Subscription Plan to the fees payable for your new Subscription Plan. If you choose a Subscription Plan and switch to the PAYGo Plan, We will not refund any portion of the monthly fee paid with respect to your Subscription Plan nor will you receive any credit for such fees towards the payment of the PAYGo Plan fees.
1Users who were on our previous free trial plan prior to September 19, 2018 can continue to use their service indefinitely, unless we decide to cease offering this former plan.
- Payment Terms
- Payment for Services shall be made in advance with any valid credit card or other form of payment (e.g., PayPal, wire transfer) that We accept, including ACH debits from your bank account(s). Checks will only be accepted for prepayments for Services and only with our approval. All payments must be made in U.S. dollars. By using the Services, you authorize Us to keep your credit card and/ bank account information on file and charge your credit card or debit your bank account in advance for the monthly fees associated with your Subscription Plan (if applicable) until such time as your VR Account is terminated or you switch to a PAYGo Plan. Your credit card or account will be charged on approximately the same day of each subsequent month following the initial commencement date of your Subscription Plan. Your Subscription Plan will automatically renew under the same terms and conditions each month unless you notify Us at [email protected] before your next billing date that you wish to, cancel your Subscription Plan, terminate your VR Account or switch to an alternative Plan. Your VR Account will be suspended if We are unable to charge your credit card or other payment methodology in advance for the monthly fees associated with your Subscription Plan. We may, but are not obligated to, attempt to notify you of our intent to suspend your access to the Services prior to such suspension taking effect. Access to the Services will be restored once you remit any required payments, unless We have already cancelled your VR Account.
- The price list associated with the Services is posted on our Website at Subscription Plan Pricing and PAYGo Fee Calculator .We may change our prices, terms and conditions at any time at our sole discretion; provided, however, that if We modify the pricing or other terms applicable to a Subscription Plan used by you, We will use reasonable efforts to notify you of the relevant changes prior to automatically renewing your Subscription Plan. All of our fees are exclusive of all taxes, levies or duties imposed by any relevant taxing authority and you are responsible for the payment of all such taxes, levies or duties. We reserve the right to collect any such taxes, levies or duties from you and forward them to the applicable taxing authority if required by law.
- You may terminate your VR Account and your use of the Services at any time by sending an email message to [email protected] or by sending written notice to, VerticalResponse, at 550 Kearny Street, Suite 710, San Francisco, CA 94108 USA. If you terminate your VR Account, We will not refund any amounts paid for any unused Credits under a PAYGo Plan or any prepayments made in respect of a Subscription Plan.
- We may terminate your VR Account and your access to the Services at any time, with or without cause and with or without notice. If We terminate your VR Account without cause, We will refund the amounts paid for any unused credits under a PAYGo Plan and a pro rata portion of any amount prepaid under a Subscription Plan (based on the number of days elapsed in the month in which such termination occurs). No refunds will be made if We terminate your VR Account because of your violation of these Terms of Service or any Policy.
- Upon any termination of your VR Account for any reason or no reason, We may delete any or all of your archived data. All sections of these Terms of Service which by their nature should survive the termination of your VR Account will survive such termination, including, without limitation, the provisions describing our warranty disclaimers (Section 9), our limitations of liability (Section 10.1), your indemnity obligations (Section 10.2), and the arbitration agreement (Section 10.3).
- If you do not use your VR Account to send a Message for more than thirty (30) consecutive calendar days, We may classify your VR Account as inactive. If your VR Account is under a Subscription Plan and it becomes inactive, We may suspend your monthly payments and your access to your VR Account. If your VR Account is classified as inactive for more than thirty (30) consecutive days, We may terminate your VR Account.
- Prohibited Content
- We may review the content of your Messages and monitor your VR Account activity and your compliance with these Terms of Service. You are prohibited from using your VR Account to send Messages of the following nature:
(a) Messages that are intended to promote illegal activities, such as Messages promoting the sale of illegal substances or escort services.
(b) Messages containing pornographic content.
(c) Offensive Messages intended to promote hatred, bigotry, intolerance of religious beliefs, racism or any other Messages that We in our sole discretion deem to be offensive.
(d) Messages that advocate or could be perceived to advocate physical harm or violence to others.
(e) Messages that are intended to fraudulently induce individuals to reveal personal information, such as passwords and credit card numbers.
(f) Messages that include images that are not expressly authorized by either Us or the owner of such images.
(g) Messages that may incite or encourage harassment or intimidation of any individual or organization based upon, among other things, their race, ethnicity, immigration status, gender, religion, age, sexual orientation or disability.
(h) Messages that introduce any computer viruses, worms or other malicious software code to the systems of a recipient.
(j) Any Messages that are prohibited by applicable law.
- We may review the content of your Messages and monitor your VR Account activity and your compliance with these Terms of Service. You are prohibited from using your VR Account to send Messages of the following nature:
- Warranty Disclaimer
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. WE EXPRESSLY DISCLAIM ALL WARRANTIES REGARDING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
- Limitation of Liability; Indemnification; Arbitration
- NEITHER WE NOR ANY PERSON THAT DIRECTLY OR INDIRECTLY CONTROLS US, IS CONTROLLED BY US, OR IS UNDER COMMON CONTROL WITH US (COLLECTIVELY, “OUR AFFILIATES”), NOR ANY OFFICER, DIRECTOR, EMPLOYEE OF OURS OR OUR AFFILIATES SHALL BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES TO YOU FOR CLAIMS OF ANY TYPE OR NATURE HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO US DURING THE TWELVE FULL CALENDAR MONTHS PRECEDING THE ASSERTION OF ANY CLAIM HEREUNDER. NO CLAIMS MAY BE BROUGHT, OR OTHERWISE PERSUED, BY YOU MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH CLAIM.
- You hereby agree to defend, indemnify and hold Us and Our Affiliates, and the officers, directors, employees of Us and Our Affiliates, harmless from and against any damages, losses, liabilities, and expenses (including, without limitation, costs of investigation, ediscovery and reasonable attorneys' fees) in connection with any third party claim or demand that arises in any way from an actual or alleged violation by you of these Terms of Service or any Policy.
(a) By using the Services, you are deemed to have agreed with Us that all claims and disputes related in any way to your use of the Services will be resolved by individual arbitration before the American Arbitration Association ("AAA") under the Federal Arbitration Act ("FAA"), except that neither you nor We are required to arbitrate (i) small claims court disputes as set forth in subsection (h) below or (ii) any claims solely seeking injunctive relief (claims excluded from these arbitration provisions are hereinafter referred to as “Excluded Claims”). The phrase "all claims and disputes" also includes claims and disputes that arose between you and Us before the effective date of these Terms of Service.
(b) VerticalResponse and you each waive any constitutional and/or statutory rights to a trial in court in front of a judge or a jury, except with respect to an Excluded Claim. If a court nevertheless requires that any dispute between VerticalResponse and you be heard in a court, VerticalResponse and you each waive any right to a jury trial in that proceeding.
(c) VerticalResponse and you each agree that all arbitrations will proceed on an individual basis, and you and VerticalResponse each waive any right to bring claims as part of a class action (either as a named-plaintiff or class member) or as part of any other proceeding where a person acts in a representative capacity of any kind.
(d) The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service or any Policy, including, but not limited to, any claim that all or any part of these Terms of Service or any Policy is void or voidable. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages). The arbitrator's decision will be final except for a limited right of review under the FAA.
(e) Either of VerticalResponse or you may initiate arbitration with the AAA pursuant to its Consumer Arbitration Rules ("AAA Rules"), as modified by this arbitration agreement. The AAA Rules are available on the AAA's website www.adr.org, or by calling the AAA at (800) 778-7879. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
(f) Payment of all filing, administration and arbitrator fees will be governed by the AAA's applicable rules, however We will reimburse those fees to you in an amount up to $25,000 (though, in no event will We pay any attorneys' fees and/or costs you may incur), unless the arbitrator determines any claim brought by you is frivolous. We waive our right to seek attorneys' fees and costs in arbitration.
(g) You may opt out of this arbitration agreement by notifying Us in writing no later than 30 days after you first become subject to these Terms of Service. Your notice must include your name and address and an unequivocal statement that you want to opt-out of this arbitration agreement. You must either mail your opt-out notice to this address: VerticalResponse, 550 Kearny Street, Suite 710, San Francisco, CA 94108, Attn: Arbitration Opt-out, or email the opt-out notice to [email protected]. You also may reject any changes We make to this arbitration agreement in later versions of these Terms of Service by sending Us a rejection notice within 30 days of the date you become subject to the revised Terms of Service. If you reject a revised version of this arbitration agreement, the most recent version of the arbitration agreement to which you agreed before the rejected change will apply.
(h) Notwithstanding the foregoing, either of you or VerticalResponse may bring an individual action in small claims court in your county of residence or in Ramsey County, Minnesota, if you meet the court's requirements.
(i) If the class action waiver contained in this arbitration agreement is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will proceed in court, with the rest of the dispute proceeding in arbitration.
- 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 these Terms of Service will otherwise remain in full force and effect.
- Both parties agree that these Terms of Service represent 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 of these Terms of Service must be in a writing signed by both parties.
- No agency, partnership, joint venture is created as a result of these Terms of Service, and you do not have any authority of any kind to bind Us in any respect whatsoever.
- These Terms of Service and your right to use the Services may not be assigned, sublicensed or otherwise transferred by you without our prior written consent.
- This Agreement shall be governed by the laws of the State of Minnesota, USA without regard to its conflict of laws provisions.