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Terms of Service

Welcome to ActionMessage.

ActionMessage provides its service to you, subject to the following Terms of Service ("TOS"), which may be updated by ActionMessage from time to time without notice to you.

1. ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS OF SERVICE (TOS)

ActionMessage┬« eMarketing services ("Service") are owned and operated by ActionMessage, Inc. ("AM"). This Service is provided to you ("Marketer") under the terms and conditions of this ActionMessage Terms of Service (TOS) and any operating rules or policies that may be published by AM. The TOS comprises the entire agreement between Marketer and AM and supersedes all prior agreements between the parties regarding the subject matter contained herein. BY COMPLETING THE REGISTRATION PROCESS YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE TOS.

2. DESCRIPTION OF SERVICE

AM will provide Marketer with a capability to create and send electronic mail ("email") via the Internet. In consideration for this Service, Marketer agrees to: (1) provide certain current, complete, and accurate information about Marketer as prompted to do so by the Service, (2) maintain and update this information as required to keep it current, complete and accurate. All information requested on original sign up shall be referred to as registration data ("Registration Data").

If any information provided by Marketer is inaccurate, AM retains the right to terminate Marketer's membership and rights to use the Service.

Marketer acknowledges and agrees that AM neither endorses the contents of any Marketer's Services or Marketer's Products or Marketer's Subscriptions nor assumes responsibility for any threatening, libelous, obscene, illegal, pornographic, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Marketer acknowledges and agrees that certain technical processing of email messages and their content may be required to: (1) send and receive messages; (2) embed targeted advertisements; (3) conform to connecting networks' technical requirements; (4) conform to the limitations of the Service; or (5) conform to other similar requirements. In addition, Marketer agrees to the following:

a. Marketer certifies that Marketer holds the copyright to message contents.
b. Marketer agrees to allow AM to use Marketer's email address and domain name for responses.
c. Marketer agrees to allow AM to audit messages for quality and compliance purposes.
d. AM will maintain list confidentiality on a best-effort basis only.
e. AM cannot guarantee delivery of messages for various reasons.
f. AM reserves the right to reschedule mail delivery.

3. MODIFICATIONS TO TERMS OF SERVICE

AM may change the terms and conditions of the TOS from time to time. Upon any change in the terms and conditions of the TOS, AM will notify Marketer by emailing the changes to Marketer at the email address which Marketer provided during the registration. If Marketer's email address has changed since registration, Marketer must provide AM with Marketer's new email address so that AM can update Marketer's contact records. If Marketer agrees to be bound by the changes, Marketer must again click the "I Accept" button, or link that will follow the posted changes within three business days of receipt. If Marketer does not click the "I Accept" button or link, AM may terminate Marketer's use of the Service at that time. Marketer's continued use of the Service constitutes an affirmative: (1) acknowledgment by Marketer of the TOS and its modifications; (2) agreement by Marketer to abide and be bound by the TOS and its modifications.

4. MODIFICATIONS TO SERVICE

AM reserves the right to modify or discontinue the Service with or without notice to Marketer. AM shall not be liable to Marketer or any third party should AM exercise its right to modify or discontinue the Service.

5. MARKETER ACCOUNT, USERNAME, PASSWORD, AND SECURITY

In order to become a Marketer, you shall create a username and password for your account. It is you responsibility to maintain the confidentiality of your account username and password. Furthermore, you are entirely responsible for any and all activities that occur under your account. You may change your password or registration information at any time by following the online instructions. You agree to immediately notify AM of any unauthorized use of your account or any other breach of security known to you.

6. DISCLAIMER OF WARRANTIES

Marketer expressly agrees that use of the service is at Marketer's sole risk. The service is provided on an "as is" and "as available" basis. AM expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. AM makes no warranty that the service will meet Marketer requirements, or that the service will be uninterrupted, timely, secure, or error free; nor does AM make any warranty as to the results that may be obtained from the use of the service or as to the accuracy or reliability of any information obtained through the service or that defects in the software will be corrected. Marketer also agrees that any material and/or data downloaded or otherwise obtained through the use of the service is done at Marketer's own discretion and risk and that Marketer will be solely responsible for any damage to Marketer's computer system or loss of data that results from the download of such material and/or data. AM makes no warranty regarding any goods or services purchased or obtained through the service or any transactions entered into through the service. no advice or information, whether oral or written, obtained by Marketer from AM or through the service shall create any warranty not expressly made herein. some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.

7. LIMITATION OF LIABILITY

AM shall not be liable for any direct, indirect, incidental, special or consequential damages, resulting from the use or the inability to use the service or for cost of procurement of substitute goods and services or resulting from any goods or services purchase or obtained or messages received or transactions entered into through the service or resulting from unauthorized access to or alteration of Marketer's transmissions or data, including but not limited to, damages for loss of profits, use, data or other intangible, even if AM has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to you.

8. NO RESALE OR LICENSE OF THE SERVICE

Marketer agrees not to resell or license the Service, without the express written consent of AM agreeing to an Agency Edition account.

9. EMAIL MESSAGE STORAGE AND OTHER LIMITATIONS

AM assumes no responsibility for the failure to deliver emails for Marketers. AM has set no fixed upper limit on the number of messages a Marketer may send through the Service.

10. MARKETER CONDUCT

Marketer is solely responsible for the content of emails sent through the Service. Marketer's use of the Service is subject to all applicable local, state, national and international laws and regulations. Marketer agrees: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; and (4) to comply with all regulations, policies and procedures of networks connected to the Service. The Service makes use of the Internet to send and receive certain messages; therefore, Marketer's conduct is subject to Internet regulations, policies and procedures. Marketer will not use the Service for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process. Marketer agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Marketer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. Marketer shall not interfere with another Marketer's or subscriber's use and enjoyment of the Service or another entity's use and enjoyment of similar services. AM retains the right, at AM's sole discretion, to determine whether or not Marketer's conduct is consistent with the letter and spirit of the TOS and may terminate Service if a Marketer's conduct is found to be inconsistent with the TOS. Marketer agrees to pay all fines, court fees and legal fees arising out of spam complaints related to their campaigns.

11. INDEMNIFICATION

Marketer agrees to indemnify and hold AM, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Marketer's use of the Service, the violation of this TOS by Marketer, or the infringement by Marketer, or other user of the Service using Marketer's computer, of any intellectual property or other right of any person or entity.

12. TERMINATION

Either Marketer or AM may terminate the Service with or without cause at any time and effective immediately. Termination shall be accompanied by a written notice to the other party. AM shall not be liable to Marketer or any third party for termination of Service. Should Marketer object to any terms and conditions of the TOS or any subsequent modifications thereto or become dissatisfied with the Service in any way, Marketer's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify AM of termination. Upon termination of the Service, Marketer's right to use the Service and Software immediately ceases. Marketer shall have no right and AM will have no obligation thereafter to forward any unread or unsent messages to Marketer or any third party.

13. NOTICE

All notices to a party shall be in writing and shall be made either via email or conventional mail. AM may broadcast notices or messages through the Service to inform Marketer of changes to the TOS, the Service, or other matters of importance; such broadcasts shall constitute notice to Marketer.

14. PROPRIETARY RIGHTS TO CONTENT

Marketer acknowledges that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material ("Content") contained in either sponsor advertisements or email-distributed, commercially produced information presented to or by Marketer, by the Service, by AM or AM's Marketer's Services, or AM's Advertisers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Marketer is only permitted to use and distribute this Content as expressly authorized by the Service, the Marketer or the Advertiser. Marketer may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by the Service, the Marketer or the Advertiser.

15. LAWS

The TOS shall be governed by and construed in accordance with the laws of the state of California. Marketer and AM agree to submit to the exclusive jurisdiction of the courts of the state of California. If any provision(s) of the TOS is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. AM's failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AM in writing. Marketer and AM agree that any legal action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such action is permanently barred. The section titles in the TOS are solely used for the convenience of the parties and have no legal or contractual significance.

16. PAYMENT

Payment shall be made according to the terms of your contract with AM. Late payments are subject to a late fee of 2% per month of the outstanding amount. Payments more than 30 days late are subject to a court collection process and the Marketer is responsible for all court costs and legal fees associated with the collection process.

Please forward any emails violating these terms to abuse@ActionMessage.com
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