MarketingCloudFX Terms and Conditions

THESE TERMS AND CONDITIONS APPLY TO CUSTOMER’S (“Customer”) ACCESS AND USE OF WEBPAGEFX INC.’S (“WebpageFX”) MARKETINGCLOUDFX (“MarketingCloudFX”) APPLICATION AND SERVICES. PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE MARKETINGCLOUDFX PLATFORM. THESE TERMS AND ANY ASSOCIATED ORDER FORMS OR CONTRACTS TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN WebpageFX AND CUSTOMER, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE AGREEMENT. CUSTOMER ACKNOWLEDGES THAT ALL INFORMATION PROVIDED BY CUSTOMER IS TRUE AND CORRECT. CUSTOMER AGREES THAT THE ACT OF UTILIZING WebpageFX’S MARKETINGCLOUDFX APPLICATION CONSTITUTES ACCEPTABLE OF ALL TERMS AND CONDITIONS ASSOCIATED WITH THE SERVICES PURCHASED AND THE ACT OF PAYMENT OR USAGE SHALL BE IN LIEU OF WRITTEN SIGNATURE.
Guidelines / Acceptable Use

WebpageFX grants Customer a non-exclusive, revocable, non-transferable, limited license to use the MarketingCloudFX Application in conjunction with marketing services provided by WebpageFX to Customer.

Customer shall not (i) modify, translate, or create derivative works based on the MarketingCloudFX Application; (ii) create any link to the MarketingCloudFX Application, frame, mirror, or proxy any content contained or accessible from the MarketingCloudFX Application; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the MarketingCloudFX Application; (iv) rent, lease, distribute, license, sub-licenses, sell, resell, assign, or otherwise commercially exploit the MarketingCloudFX Application, other than as provided herein; (v) access the MarketingCloudFX Application in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions, or graphics of the MarketingCloudFX Application. Customer shall be responsible for the legality of data collection from Customer’s website visitors using the MarketingCloudFX Application. Customer is responsible for complying with all laws and providing proper notification to Customer’s website visitors regarding the use of MarketingCloudFX Application including, but not limited to the data collection practices, the use of cookies, the tracking of visitor behavior, and the capture of all user-related information such as browser information, consumer-inputted data, and behavior while on the website.

Usage of the MarketingCloudFX Application is limited to Customer. Customer will not permit a third party to access or use the MarketingCloudFX Application.

Customer agrees not to participate in deceptive, misleading, or unethical practices. Customer agrees not to utilize MarketingCloudFX on any website associated with explicit, pornographic, violent, or illegal content. Customer will use the MarketingCloudFX Application in a manner consistent with all applicable local, state, and federal regulations and laws.

If applicable, Customer agrees to follow all applicable laws regarding call recording, included, but not limited to federal and state laws and regulations. As a convenience, WebpageFX will make technology available for Client to automatically play a prerecorded message on an inbound call upon Customer’s request notifying the calling party that the call may be recorded. Customer must determine if the prerecorded message is adequate to conform to all laws.

Customer Responsibilities

Effective use of WebpageFX’s services presumes a certain degree of knowledge and skill on the part of the Customer. For example, it is presumed that Customer possesses at least a rudimentary knowledge of Internet-related processes and software applications such as e-mail, FTP, Telnet, and web-browsing. Implementing the MarketingCloudFX Application will require some knowledge of HTML and JavaScript. WebpageFX will not be held responsible for Customer’s inability to use the MarketingCloudFX Application due to Customer’s lack of the requisite knowledge and skills. WebpageFX may provide reasonable assistance to Customer for the implementation of the MarketingCloudFX Application at Customer’s expense. Customer is responsible to prevent any confidential, sensitive, protected, or similar data from being transmitted to the MarketingCloudFX Application.

User-supplied Content

All services may be used for lawful purposes only. Through WebpageFX’s Service, Customer may have access to services that enable Customer to send or post materials (“content”) and make that content available to others. Customer must not submit, publish, or display any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, Customer may not submit, publish, or display any content that violates any US Federal, State, or Local law. Customer is solely responsible for the content made accessible through the MarketingCloudFX Application. Customer may not use the MarketingCloudFX Application to assist any other person or entity to violate any Federal, State, or Local laws, ordinances, or regulations.

WebpageFX is not obligated to monitor the MarketingCloudFX Application to examine available content. Customer hereby acknowledges that if WebpageFX is made aware of content that is determined to be, in WebpageFX’s sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, WebpageFX has the right, but not the obligation, to edit, remove or deny access to such content. WebpageFX may disclose any content or records concerning Customer’s account as required to satisfy any law, regulation, governmental request or court order.

Pornography and sex-related merchandising are prohibited. This includes sites that may infer sexual content, display nudity, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to WebpageFX’s technology or any other server on the Internet. Links to such materials are also prohibited.

The following content and activities may not be displayed or promoted by Customer nor associated in any way with Customer’s account or the MarketingCloudFX Application. WebpageFX shall be the sole arbiter as to what constitutes violation of this provision.

  • Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or local law.
  • Copyrighted material used without permission.
  • Material or activities judged by WebpageFX to be threatening, obscene, disparaging, or hate-related.
  • Material protected by trade secret or other statute.
  • Pornography, nudity, erotica, and sex-related merchandising, including sites that may infer sexual content, or link to adult content elsewhere.
  • Content that promotes any illegal or prohibited activity.
  • Content that may be damaging to WebpageFX’s servers or to any other server on the Internet.
  • Pirated software (warez).
  • Hacking/Phreaking – Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.
  • IRC, IRC Bots, IRC BNC, etc.
  • Promotion or sale of unsolicited or bulk e-mail (SPAM) software or services.
  • Unsolicited or bulk e-mail or newsgroup posts (SPAM) which references and/or is traceable to WebpageFX and/or any Customer in any way.
  • Illegally distributed entertainment content (music, film, etc.).
  • Harassing, annoying, or otherwise interfering with any person’s, group’s, or organization’s use or enjoyment of the Internet experience.
  • Links or reference to any of the above.
Email Use and Anti-spam Policy

MarketingCloudFX may not be the source, intermediary, or destination address involved in the transmission of unsolicited bulk e-mail (UBE), unsolicited commercial e-mail (UCE), spam, off-topic newsgroup posts, flames, or mail bombs. Customer’s domain may not be referenced or traceable in any way as a result of any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of WebpageFX’s network or equipment. WebpageFX reserves the right to refuse and/or cancel service to known spammers. WebpageFX reserves the sole right to determine what constitutes violation of this provision.

SPAM is any unsolicited e-mail, post, or facsimile in the newsgroup, e-mail, fax, or other electronic medium. Any unsolicited commercial email (no matter how relevant or important it may be) is spam; any unsolicited bulk email (commercial or not) is also spam. Mass and unsolicited are not concurrent conditions for spam. One and/or the other is sufficient. In the medium of newsgroups, spam is considered to be any off-topic posting and/or any identical posting to multiple newsgroups. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one’s e-mail address accessible to the public shall not constitute a request or invitation to receive messages.

Any spam complaints received about Customer are addressed seriously. After investigation, if it is deemed by WebpageFX that spamming practices have indeed been utilized using the MarketingCloudFX Application, WebpageFX reserves the right to terminate an account immediately with no refund. Customer expressly accepts WebpageFX’s right to assess this penalty and agrees to its assessment and payment.

MarketingCloudFX users must comply with all laws and regulations applicable to bulk or commercial email when using the MarketingCloudFX Service, including without limitation the United States CAN-SPAM Act of 2003 as well as all other local or national laws applicable to the regions where MarketingCloudFX users have business operations or where their email recipients are located.

In addition, you may not send any Unsolicited Email by use or means of the MarketingCloudFX Service. “Unsolicited Email” is defined as email sent to persons other than: (i) persons with whom you have an existing business relationship, OR (ii) persons who have consented to the receipt of such email, including publishing or providing their email address in a manner from which consent to receive email of the type transmitted may be reasonably implied.

All Bulk or Commercial Email sent using MarketingCloudFX must include provision for recipients to revoke consent, i.e., to “opt out”, of receiving future email contacts from the sender. You must either use the Unsubscribe tools supplied by default with the MarketingCloudFX Service; or, if you choose to override the MarketingCloudFX default tools, you must have procedures in place to allow an email recipient to easily opt-out, such as an unsubscribe link in the body of the e-mail, or instructions to reply with the word “Remove” in the subject line. Any such revocations of consent should be honored within 72 hours.

Copyright Infringement

It is WebpageFX’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If we remove or disable access to comply with the Digital Millennium Copyright Act, we will make a good-faith attempt to contact the owner or administrator of each affected site so that they may make a counter notification pursuant to sections 512(g)(2) and (3) of that Act.

Fees

Customer shall pay to WebpageFX all of the fees specified in the executed agreements. Any payment not received from Customer by the due date shall be subject to suspension of the MarketingCloudFX Application by WebpageFX without liability to WebpageFX, until such account is paid in full.

Cancellation Policy

Customer bears all responsibility for ensuring effective cancellation of Customer account. This responsibility includes providing effective and authenticated notification to WebpageFX of Customer’s desire to cancel an account. This responsibility shall not be waived or modified by WebpageFX or Customer in any way at any time subsequent to the submission by Customer of an cancellation notice for WebpageFX account. WebpageFX will act immediately to implement Customer’s cancellation notice, providing the terms of this cancellation policy have been followed as well as Customer meeting all obligations in all agreements with WebpageFX. WebpageFX is not required to provide client with a prorated refund of services paid. Customer is required to pay WebpageFX for services rendered.

Confidentiality

As used herein, “Confidential Information” means all confidential information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of any executed or proposed agreement between Customer and WebpageFX. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known by Receiving Party outside of its relationship with Disclosing Party in a lawful manner. Under no circumstances shall the Receiving Party be prohibited from providing information to (a) law enforcement, or (b) any party based on a court order. The Receiving Party shall not use any Confidential Information for any purpose other than for the execution of any agreement between the parties. The Receiving Party agrees to protect the Confidential Information in the same manner that it protects its own confidential information.

Proprietary Rights

The MarketingCloudFX Application and all intellectual property rights therein are owned or licensed by WebpageFX. Except for the Subscription granted here-under, the Customer has no rights, titles, or interests to the MarketingCloudFX Application. WebpageFX shall retain all right, title, and ownership in and to the processes, source code, algorithms, and proprietary knowledge contained in the MarketingCloudFX Application. WebpageFX shall retain all right, title, and ownership in and to the data generated by the use of the MarketingCloudFX Application. WebpageFX shall retain all right, title, and ownership in and to the data inputted by or on behalf of Customer into the MarketingCloudFX Application with the exception of Customer trademarked or copyrighted content.

Limitation of Liability

In no event shall WebpageFX be liable for any direct, indirect, special, incidental, consequential, punitive or exemplary damages however caused and whether in contract, tort or under any other theory of liability, whether or not WebpageFX has been advised of the possibility of such damages including, without limitation, loss of business, lost profits or revenue. WebpageFX’s aggregate liability for damages here-under shall not exceed the total amount of fees paid and/or due by the Customer to WebpageFX in a six (6) month period. WebpageFX’s service is provided on an “as is, as available” basis. WebpageFX gives no warranty, expressed or implied, for the MarketingCloudFX Application, including without limitation, any warranty of merchantability or warranty of fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by WebpageFX and its employees.

Indemnification

Customer agrees that it shall defend, indemnify, save and hold WebpageFX harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against WebpageFX, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold WebpageFX harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with a MarketingCloudFX Application; (2) any material supplied by Customer infringing or allegedly infringing on the proprietary rights of a third party and (3) copyright infringement.

WebpageFX expects that its Customers will fully comply with all applicable laws. A Customer’s failure to comply with those laws will violate this policy. Finally, WebpageFX wishes to emphasize that in accepting services, Customer indemnifies WebpageFX for the violation of any law or WebpageFX policy that results in loss to WebpageFX or the bringing of any claim against WebpageFX. This means, among other things, that if WebpageFX is sued because of activities of Customer that violate any law, or this policy, the Customer will pay any damages awarded against WebpageFX plus costs and reasonable attorneys’ fees.

Notifications

WebpageFX relies on e-mail as the primary means of notifying Customers of important system news, problems with Customers’ accounts or usage of those accounts, billing problems, etc. Any notifications will be e-mailed to Customer domain’s primary e-mail address and/or to the contact e-mail address provided by Customer upon executing an agreement with WebpageFX. Customer agrees to monitor these e-mail addresses on a regular basis and to respond promptly, if required, to any notifications. Customer agrees to notify WebpageFX of any changes to Customer’s physical or e-mail address, telephone numbers, etc.

Policy Changes

These policies may change with or without notice. Customer agrees to comply with these policies in their current and future state. Customer agrees to periodically review published policies to ensure understanding of and compliance with current policies.

Refusal of Service

WebpageFX reserves the right to refuse or cancel service at WebpageFX’s sole discretion, with or without reason, with or without warning.

Jurisdiction

Customer agrees to submit to the jurisdiction of the applicable municipal, county, state or federal court of WebpageFX’s physical residence for any litigation, mediation, or arbitration which may arise from any dispute concerning any of the provisions herein. Controlling law shall be that of the State of WebpageFX’s residence. The prevailing party in any litigation hereunder shall be entitled to recover its reasonable attorney’s fees and court costs.

Enforcement

The invalidity, illegality, or unenforceability of any one or more provisions hereof shall in no way affect or impair the validity, legality, or enforceability of the remaining provisions hereof, which shall remain in full force and effect.

The failure of a party to these Terms to object to or to take action with respect to the conduct of the other party which is in violation of the terms hereof will not be construed as a waiver of any rights the non-objecting party may have, nor of any future claims of breach or wrongful conduct.

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