PLEASE READ THIS END USER AGREEMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND FireDrum Internet Marketing THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY HAVE BEEN UPDATED SINCE YOUR LAST VISIT TO THIS WEBSITE.
1. Services are provided subject to this Agreement and may be updated by FireDrum Internet Marketing at any time. FireDrum Internet Marketing may update any guidelines, rules or operating policies and post them to this site at any time. By posting updated versions of the Agreement FireDrum Internet Marketing may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.
4. Our services enable individuals the use online email marketing services to collect, store and manage opt in contact email addresses to help create, launch, and manage online email campaigns. This service is Permission-Based, meaning all contacts must have specifically requested to receive emails from you.
5. The content, number of contacts stored, the number of email messages sent and the number of Kilobytes of data transferred are monitored by FireDrum Internet Marketing. Some FireDrum Internet Marketing accounts allow you to send an unlimited number of email messages per month and other accounts allow a fixed number of email messages per month. Additional data transfer may be purchased at an additional rate. Unused email volume and unused data transfer do not carry over from month to month. All content must comply with our Anti-Spam Policy and Prohibited Content statement, whether or not said content is actually sent using our services.
6. Customers may elect to use our email marketing solution for free. You will not be billed for such use and may use FireDrum Internet Marketing's services subject to the subscriber limits posted on the site. The subscriber limits for a free account are subject to change at any time. When using the FREE Service, the total number of deactivated members cannot exceed the member limit. If this occurs you will need to upgrade your account to the appropriate level to allow for your total contacts. In order to increase the number of contacts past the limit of the FREE account, the customer must upgrade to a Paid Plan. Only one free account is allowed per person, company or postal address, unless prior authorization is received from FireDrum Internet Marketing.
8. For Managed pay as you go accounts, available only by special request, the services will be subject to minimum monthly subscription fees of $25.00. Access to the services will be disabled until payment is received. Paid services are billed monthly according to the agreement fee schedule provided to you by FireDrum Internet Marketing. The fee schedule, including volumes of email and prices, are subject to change at any time. All fees paid to FireDrum Internet Marketing are non-refundable. Payment for services will be made by a valid credit card accepted by FireDrum Internet Marketing, unless other payment arrangements have been made between you and an authorized FireDrum Internet Marketing representative. Payments not received by the due date may be subject to finance charges of 18% APR or the maximum rate permitted by law of the amount then due, for each month overdue.
PAYMENT FOR SERVICES
9. Unless specifically stated otherwise on your invoice, payment for all accounts is Due Upon Receipt. Services for Accounts signed up online will be charged to a valid credit card upon upgrade and upon each renewal date. Payment is not required to use our Free Email Marketing Services. Customers who choose to upgrade to a Paid Plan must input accurate and complete billing information in order to complete the upgrade process. All fees paid to FireDrum Internet Marketing are non-refundable. If the credit card on file is declined for any reason, you will be notified by email and/or phone call, services may be suspended and you may incur additional charges. A $25 fee will be added to your balance for each NSF, Chargeback, or disputed credit card transaction. Accounts with Past Due balances will be subject to Finance Charges of 18% APR for each month the account balance remains unpaid. FireDrum Internet Marketing reserves the right to submit any account with a Past Due balance to a collections agency. If your account is submitted to collections, an additional Default Processing Fee of $25 will be added to your balance.
10. Unless specifically stated on your contract, most accounts require 30 days notice for cancellation. Accounts signed up online and pre-billed may be canceled at any time by logging into your account and clicking the Help & Support tab; services will be suspended at the end of the current billing cycle; no refunds will be issued for pre-paid services. You are responsible for verifying account cancellation notice has been received. FireDrum reserves the right to cancel any account at any time for any reason. No refunds will be issued. If you plan on canceling your account, download all account information prior to cancellation. Any data left in the account may be deleted and unable to be recovered. If you choose to reactivate a canceled account, a $25 Reactivation Fee may apply.
11. It is understood that FireDrum Internet Marketing makes no guarantee that HTML messages will render properly on all recipients' email clients. FireDrum Internet Marketing makes every attempt to make sure that all email messages sent through our servers follow W3C and IETF email standards, but we cannot guarantee that messages will look consistent across all email platforms. For the best results FireDrum Internet Marketing recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards. FireDrum Internet Marketing also provides a browser based HTML editor which you may use to compose your HTML message.
12. Customer assures FireDrum Internet Marketing that (a) copying, displaying, modifying and distributing materials on the Internet does not violate the patent, copyright, trade secret, trademark or other intellectual or proprietary rights of any third party, and that (b) the materials and other services or products available through the product does not violate any applicable laws, including export control law, obscenity laws or laws regarding consumer privacy (c) the Prohibited Content policy is abided.
13. Customer shall indemnify and hold harmless FireDrum Internet Marketing and its officers, agents, employees, and directors and members from and against any and all losses, liabilities, damages, claims, payments, liens, judgments, demands, costs and expenses (including reasonable attorney's fees) that result from any claim, liability, damage or cause of action (including claims of third parties) arising out of or relating to, in whole or in part(a), any act, omission or representation of Customer or its agents in performance of this Agreement; (b) any breach of Customer's representations or warranties under this Agreement. Customer agrees that the foregoing indemnification obligations survive the termination or expiration of this Agreement and the amount thereof shall be payable upon demand.
14. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, FireDrum Internet Marketing HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY FireDrum Internet Marketing's EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY FireDrum Internet Marketing FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF FireDrum Internet Marketing WHATSOEVER.
15. NOT WITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, FireDrum Internet Marketing's LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT, DURING THE PRECEDING 3 MONTHS. IN NO EVENT WILL FireDrum Internet Marketing BE LIABLE FOR ANY LOSS OR DAMAGE, LOSS OF REVENUES, LOSS OF PROFITS, OR ANY OTHER ECONOMIC LOSS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE, ERRORS AND/OR OMISSIONS, TERMINATION, OR ANY OTHER FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT, REGARDLESS OF THE THEORY UNDER WHICH ANY SUCH CLAIMS MAY BE BROUGHT, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY, EVEN IF FireDrum Internet Marketing HAS BEEN ADVISED, KNOWS, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
16. Consent to Service of Process
The Parties agree that any process served for any suit or proceeding, as authorized hereunder, shall be valid if mailed by overnight mail via a nationally recognized carrier or by certified mail, return receipt requested, to the respective parties at the addresses designated on this Agreement or an alternate address if a party has notified the other party in writing of a change of address.
17. Neither party to this Agreement shall be liable for delays caused by an event of natural disaster, casualty, acts of God, riots, acts of terrorism, governmental acts or such other event of similar nature that is beyond the delaying party's control; provided however that such party shall not have contributed in any way to such event.
18. If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision which approximates the intent and economic effect of the affected provision.
ACCORD & SATISFACTION
19. Whenever a debt hereunder shall be unliquidated and/or under a legitimate good faith dispute or disagreement as to its amount, the Parties agree that they may not discharge the debt by tendering a check marked "payment in full", even though the check is negotiated by either party.
ASSIGNMENT & SUCCESSORS
20. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, and/or assigns of the Parties. Customer may not assign its rights or obligations hereunder without the prior written consent of FireDrum Internet Marketing.
21. No forbearance by either party to enforce any provision under this Agreement or any right existing under this Agreement shall constitute a waiver of such provisions or rights or be deemed to amend or modify this Agreement.
PUBLICITY & INTELLECTUAL PROPERTY
22. This Agreement grants FireDrum Internet Marketing the right to use Customer's and its affiliate's trademarks, service marks, logos, trade names and/or pictures and to otherwise refer to CUSTOMER and its affiliates in any marketing, promotional or advertising materials or activities. CUSTOMER may not issue any publication or press release relating to or disclosing the existence of, or the terms and conditions of any contractual relationship between FireDrum Internet Marketing and the CUSTOMER, except as may be authorized in writing by FireDrum Internet Marketing. "Work Product," as used hereinafter means models, designs, codes/coding, devices, reports, computer programs, tooling, schematics and other diagrams, instructional materials, and anything else FireDrum Internet Marketing, its agents, employees, and Subcontractors produce in connection with this Agreement. All Work Product will belong to FireDrum Internet Marketing. CUSTOMER hereby assigns to FireDrum Internet Marketing all copyrights, patents and/or trademarks in such Work Product. To the extent permitted by law, and as it pertains to the Work Product, CUSTOMER waives any moral rights, such as the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation, whether arising under the Berne Convention or otherwise. Furthermore, the parties agree that any Work Product created by FireDrum Internet Marketing shall belong to and be the exclusive property of FireDrum Internet Marketing; as such Work Product shall not be deemed "MADE FOR HIRE." CUSTOMER will sign any necessary documents and will otherwise assist FireDrum Internet Marketing, at FireDrum Internet Marketing's expense, in registering FireDrum Internet Marketing's copyrights, patents and/or trademarks and otherwise protecting FireDrum Internet Marketing's rights in such Work Product in any country. FireDrum Internet Marketing will own all patents, copyrights or trade secrets covering such materials and Work Product and will have full rights to use the materials and/or Work Product without claim on the part of CUSTOMER for additional compensation.
23. The validity, performance and construction of the terms and conditions of this Agreement shall be construed in accordance with and governed by the laws of the State of Arizona, and any suit to enforce or construe any provision of this Agreement shall be submitted to binding arbitration under the auspices of the American Arbitration Association within the State of Arizona. The prevailing party shall be entitled to recover its attorney's fees and expenses in any successful action to enforce this Agreement.