Software as a Service Terms of Use

Thank you for selecting the Software and Services offered by e•Contact System. Review these Terms of Use ("Agreement") thoroughly. This Agreement is a legal agreement between you (the Primary User and any Sub-Users you allow access to the system) and e•Contact System.  If the person clicking on the "ACCEPT" button is an individual working for User ("Agent"), such person is agreeing to the terms and conditions of this Agreement on behalf of User and certifies that he/she is an Agent of User and has all necessary authority to act on your behalf, including to bind User to the terms and conditions of this Agreement.

By accepting electronically (for example, clicking "I Agree"), installing, accessing or using the Services, you agree to these terms. One of which is, but not limited to, you as the (Primary User/Subscriber) accept all responsibility for any and all Sub-Users you grant access to use of the system.  If you do not agree to this Agreement, then you may not use the Services.

1. SUBSCRIPTION. The Service is licensed on a monthly or yearly subscription basis, as selected by User or its agent.

1.1 Termination by User. User may notify e•Contact System to cancel the subscription prior to the beginning of each Renewal Term. Your rights to use the Software may be terminated by e•Contact System immediately and without notice if e•Contact System is unable to debit your or your Agent's Card in accordance with this Agreement.

1.2 Transfer of Agreement. The agreement cannot be transferred to another person or entity. Even if you stop using the Service, e•Contact System has fulfilled your subscription term.

1.3 Trial Period. If you registered for a trial use of our Services during a trial period ("Trial Period"), you must decide to purchase the Services within the Trial Period in order to retain any Content (defined in Section 6) that you have posted or uploaded during the Trial Period. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Services or product during the trial period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added/created during the trial.

2. PERMITTED DISCLOSURES AND USE OF DATA. You acknowledge and agree that in order to provide you with access to and use of the Software and Services, e•Contact System may provide your Access Information and Account Data to (i) your employee or agent who is identified in the Registration Data as the current system administrator for your account (the "Current Administrator"), (ii) such other employee or agent who may be designated by you as a replacement administrator for your account by following the procedures required by e•Contact System to effectuate such replacement, and (iii) any other person identified as an authorized user of the Software and Services in the set-up interview form or in any subsequent communication to e•Contact System (collectively, "Information Recipients").

 

A. GENERAL TERMS

1. AGREEMENT

This Agreement describes the terms governing your (Primary User/Subscriber) and your Agent's (all Sub-Users you granted access to) use of the e•Contact System online services provided to you on this website, including content, updates and new releases, (collectively, the "Services"). It includes by reference:

• e•Contact System’s Privacy Statement provided to you in the Services available on the website or provided to you otherwise.
• Additional Terms and Conditions, which may include those from third parties.
• Any terms provided separately to you for the Services, including product or program terms, ordering, activation, payment terms, etc.

2. YOUR RIGHTS TO USE THE SERVICES

2.1 The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services and only for the purposes described by e•Contact System.  e•Contact System reserves all other rights in the Services. Until termination of this Agreement and as long as you meet any applicable payment obligations and comply with this Agreement,  e•Contact System grants to you a personal, limited, nonexclusive, nontransferable right and license to use the Services.

You agree to comply with the following in connection with your use of this website or the Products:

• You agree to import, access or otherwise use only contacts for which all listed parties have consented to receive correspondence from you, in compliance with applicable law, in connection with your use of the Products. You agree not to use any other contact lists in connection with your use of the Products. It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks "Like" on your Facebook page, or "follows" you on Twitter, unrelated to such survey or event or otherwise. For respondents to your surveys or registrants to your events or people or organizations that interact with you through your social media campaigns, consent to receive other correspondence from you is evidenced by the respondent or registrant opting into the "Join My Mailing List" link in the course of responding to your survey, registering for your event or interacting with you by means of your social media campaigns.  If you have used our feature that allows you to request a recipient to confirm that you have the recipient's permission to send messages to such recipient, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send messages to that recipient. You acknowledge that the use of this feature may not be permissible under the laws of all jurisdictions, and further acknowledge and agree that you have sole legal control, responsibility and liability for compliance with any such laws.
• You agree that you shall not utilize the Products to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose and a "commercial electronic mail message" as defined in the CAN-SPAM Act or Canada's Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.
• You cannot send messages through the Services to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.
• Messages that you send through the Services may generate spam or other complaints from recipients. As a matter of privacy, we cannot share with you information about those recipients who complain about your messages, surveys, events or campaigns.  You are responsible for ensuring that your messages, surveys, events or campaigns do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Services if we determine that your level of spam or other complaints are higher than industry norms, as determined by us in our sole discretion (such determination shall be final, binding and conclusive for all purposes under this Agreement).
• You shall not interfere with or disrupt this website or any related e•Contact System websites or servers or networks connected to this website or any Products.
• You shall not restrict or inhibit any other user from enjoying and using this website or the Services.
• You shall not use the Services in violation of applicable law or third party rights (including third party terms of service), and shall not use the Services for hosting content (for example, images and documents) that infringes on the intellectual property rights of others.
• You will not set up multiple accounts for any individual or organization in order to send substantially similar content unless you are part of a franchise.
• You agree that the "from" line of any email message sent by you using the Services will accurately and in a non-deceptive manner identify you or your sub-users as the senders. r organization, your product or your service.
• You agree that the "subject" line of any email message sent by you using the Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
• You agree to include in any email message sent by you using the Services your valid physical address, which, if you are located in the U.S., may be a valid post office box meeting the registration requirements established by the United States Postal Service.
• In your use of the Services, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.
• You shall not copy any of our templates or any other features or functionality from the Services or use them for any purpose other than through your use of the Services themselves.  This restriction also applies to customized templates prepared by our professional services group.
• You may not use documents and images hosted by us on servers controlled by us for any purpose whatsoever other than in connection with the Services.
• You agree that in any message sent by you, you will not include any incentives (for example, coupons, discounts or awards) that encourage a recipient to forward the message to another recipient.
• You acknowledge that you are solely responsible for complying with any applicable restrictions or limitations, as well as updating and ensuring that any applicable restrictions or limitations meet your requirements and comply with your obligations hereunder.

2.2 You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:

• Provide access to or give any part of the Services to any third party.
• Reproduce, copy, deconstruct, sell, trade or resell the Services.
• Make the Services available on any file-sharing or application hosting service.

• Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, Products or Services competitive to e•Contact System.
• You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
• The Services may not be used for the sending of unsolicited email messages (sometimes called "spam"). All messages sent by means of the Services shall be in compliance with our Anti-Spam Policy.  You shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.  You are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the "CAN-SPAM Act")) of any message sent by you using the Services.  Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent, within the meaning of Canada's Anti-Spam Legislation, S.C. 2010, c. 23 ("Canada's Anti-Spam Legislation").

2.3 Subscriber Opt Out. Every email message sent in connection with the Services must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then-current Customer Privacy Policy. Each such link must remain operational for at least 60 days after the date on which you send the message, and must be in form and substance satisfactory to us.  You agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission and update the email addresses to which messages are sent through your e•Contact System account.  You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and Canada's Anti-Spam Legislation, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your e•Contact System account and this Agreement.

 2.4 Limitations on Use. You acknowledge the following in connection with your use of this website and the Services:

• You understand that not all messages or campaigns sent through use of the Services will be received by or will be capable of being viewed by their intended recipients.
• To the extent permitted by applicable law, we may make and preserve copies of any and all messages, events, surveys and social campaigns as necessary to provide the Services and for internal back-up and other legal or regulatory purposes.
• You understand that delivery of messages via the Services may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You further understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.
• You agree that we may establish general practices and limits concerning use of the Services, including without limitation the maximum number of messages or social campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may transmitted via the Services.
• We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or social campaigns from entering, utilizing or remaining within our network. Nothing in this policy is intended to grant any right to transmit or send messages or social campaigns to, or through, our network except as may be otherwise stated in this Agreement.

2.5 Privacy.

• You shall adopt and comply with the Customer Privacy Policy, which may be modified by us from time to time (the "Customer Privacy Policy"), with respect to your email, event and social media marketing activity conducted through this website or our Services.  You acknowledge that the Customer Privacy Policy is provided as a convenience to you and that it is not intended to and does not constitute legal advice and that no attorney-client relationship is formed.  We do not warrant or guarantee that compliance with the Customer Privacy Policy will be sufficient to comply with your obligations hereunder, under applicable law or with third party rights.
• You will not import or incorporate into any contact lists, messages, surveys, event registrations, social campaigns or uploads to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal and/ or health information of any kind.
• For the purposes of European Directive 95/46/EC and applicable national implementing laws in your jurisdiction, and with respect to your customer's personal data, you acknowledge and agree that you are the data controller, and we are a data processor. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law. We agree that we shall process your customer's personal data on your behalf in accordance with your instructions, as set out in these Terms and Conditions of Use, the Privacy Statement and in order to provide the Services, and any instructions received from time to time, and that we have taken and will continue to take adequate technical and organizational measures against unauthorized or unlawful processing of, accidental loss or destruction of, or damage to, your customer's personal data as set out in our Privacy Statement.

2.6 Footers. For every message sent via the Services, survey, event or social campaign launched or distributed via the Services, you agree that we may add a link to our website and a statement such as "Email Marketing by e•Contact System " or "Powered by e•Contact System " in the footer or other similar location that does not unreasonably obscure the message, survey, event or social campaign.

2.7 Remote Access. You may from time to time provide our personnel or our agents with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Services.  You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by us or our personnel or our agents.

3. PAYMENT. Once you have completed your free trial period for the e•Contact System Service you will be subject to a monthly subscription fee for Services offered on a payment or subscription basis, the following terms apply, unless  e•Contact System notifies you otherwise in writing.  This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:

a. Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services.

b. You must pay with one of the following:

1. A valid credit card acceptable to e•Contact System;

2. A valid debit card acceptable to e•Contact System;

3. By another payment option e•Contact System provides to you in writing.

c. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse any use of the Services.

d. If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.

e. e•Contact System will automatically renew your monthly or annual Services at the current rates, even if you are not actively using the Services unless they are cancelled or terminated under this Agreement.

f. Payment starts when you (subscriber or sub-user) initiate the process by using your credit card to subscribe to e Contact System.  You will be billed every (30) days from the date you subscribe, depending on the number of sub-users and combined (total of primary user and all sub-users) contacts in the system at the time of your billing.  Example 1: (1) primary user and (2) sub-users with a combined contact data base of 500 contacts in the system, you will be billed the rate of $99.95.  Example 2: (1) primary user and (2) sub-users with a combined contact data base of between 501-1000 contacts in the system, you will be billed the rate of $109.95.  Example 3: (1) primary user and (2) sub-users with a combined contact data base of between 1001-1500 contacts in the system, you will be billed the rate of $119.95.

g. Additional cancellation or renewal terms may be provided to you on the website for the Services.

 

4. USE WITH YOUR MOBILE DEVICE

Use of these Services may be available through a compatible mobile device, Internet access and may require software.  You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.

 e•Contact System MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:

(i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION;

(ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND

(iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.

 

5. YOUR PERSONAL INFORMATION. You can view e•Contact System Privacy Statement provided with the Services and on the website for the Services.  You agree to the applicable e•Contact System Privacy Statement, and changes published by e•Contact System.  You agree that e•Contact System may use and maintain your data according to the e•Contact System Privacy Statement, as part of the Services.  You also give e•Contact System permission to aggregate your non-personally identifiable data which you enter or upload with that of other users of the Services. For example, this means that e•Contact System may use that aggregated data to improve services, design promotions, or provide ways for you to compare business practices with other users.

 

6. CONTENT

6.1 You (as well as any sub-user you grant permission to use the system under your user agreement) are responsible for your  content.  You are responsible for all materials ("Content") uploaded, posted or stored through your use of the Services.  Archive your Content frequently.  You are responsible for any lost or unrecoverable Content.  You must provide all required and appropriate warnings, information and disclosures. e•Contact System is not responsible for the Content or data you submit through the Services.

You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:

• Displays or market material that exploits children under 18 years of age;
• Posts or disclosures of any personally identifying information or private information about anyone without his or her consent, including children under 18 years of age without their parents' consent;
• Posts or disclosures of any material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or that is obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
• Any libelous, defamatory, scandalous, threatening, or harassing activity;
• Any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or that provides instruction, information or assistance in causing or carrying out such violence;
• Any viruses, worms, Trojan horses, spyware or other harmful code;
• Any content, including any image, that infringes, misappropriates or otherwise violates the intellectual property rights of others, including authors, artists, or photographers;
• Any products or services that are unlawful in the location at which the content is posted or received;
• Any of the following products or content (or services related to the same):
  • Pornography or illicitly pornographic sexual products, including but not limited to adult magazines, video and software, escort services, dating services, or adult "swinger" promotions; provided, however, the foregoing prohibition shall not apply to established retail home-based party businesses;
  • Illegal drugs and contraband that are unlawful in the location at which the content is posted or received;
  • Illegal goods, pirated software or media; or
  • Instructions on how to assemble or otherwise make bombs, grenades or other weapons;
• Services or content frequently associated with spam, such as:
• Online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, prescription and counterfeit drugs;
• Debt collections, credit repair and debt relief offerings;
• Promotion of stocks or stock message boards;
• Work-at-home offers promoting "get rich quick," "build your wealth" and "financial independence;"
• Pyramid schemes or multi-level channel, network and/or referral marketing (MLM) businesses used for prospecting or recruiting;
• DJ/nightclub, event/club promotions/party lists; or
• Odds making and betting/gambling services, including but not limited online poker, casino games, college and pro sporting events; or
• Third party voter registration lists or party lists obtained in which the specific candidate did not collect explicit consent.
• In the event that you engage in any of the activities listed above, in our sole discretion, we reserve the right to terminate your access to or use of the Services, disable your e•Contact System account or access to the Services, and remove all or a portion of your content, in each case at any time, with or without notice and without refund. We may also report your activity to the applicable legal authorities as required by law or in our discretion.

 6.2 Community forums. The Services may include a community forum or other social features to exchange Content and information with other users of the Services and the public. Please use respect when you interact with other users.  Do not reveal information that you do not want to make public. Users may post hypertext links to content of third parties for which e•Contact System is not responsible.

6.3 e•Contact System may freely use feedback you provide.  You agree that e•Contact System may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant e•Contact System a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to e•Contact System in any way.

6.4 e•Contact System may monitor your Content.  e•Contact System may, but has no obligation to, monitor content on the Services.  We may disclose any information necessary to satisfy our legal obligations, protect e•Contact System or its customers, or operate the Services properly. e•Contact System, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.

 

7. ADDITIONAL TERMS

7.1 e•Contact System does not give professional advice.  Unless specifically included with the Services, e•Contact System is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice.  Consult the services of a competent professional when you need this type of assistance.

7.2 We may tell you about other e•Contact System Services. You may be offered other services, products, or promotions by e•Contact System ("e•Contact System Services"). Additional terms and conditions and fees may apply.  With some e•Contact System Services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, etc., to the Internet. You grant e•Contact System permission to use information about your business and experience to help us to provide the e•Contact System Services to you and to enhance the Services.  You grant e•Contact System permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally.  You also grant e•Contact System permission to share or publish summary results relating to research data and to distribute or license such data to third parties.

7.3 Communications. e•Contact System may be required by law to send you communications about the Services or Third Party Products.  You agree that e•Contact System may send these communications to you via email or by posting them on our websites.

7.4 You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to contact e•Contact System if you become aware of any unauthorized access to your account.  The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services.  You agree to receive these updates.

 

8. SOCIAL MEDIA SITES e•Contact System may provide experiences on social media platforms such as Facebook®, Twitter® and LinkedIn® that enable online sharing and collaboration among users who have registered to use them.  Any content you post, such as pictures, information, opinions, or any Personal Information that you make available to other participants on these social platforms, is subject to the Terms of Use and Privacy Policies of those platforms.  Please refer to those social media platforms to better understand your rights and obligations with regard to such content

9. DISCLAIMER OF WARRANTIES

 9.1 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS” and “AS AVAILABLE”.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, e•Contact System, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY,"SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. e•Contact System AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. NO STATEMENTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITY SET FORTH IN THIS AGREEMENT.

 9.2 e•Contact System, IT’S AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.  YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES IN COMPLIANCE WITH THE LICENSE AND/OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES (including your e-mail and/or social networking providers), AND WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSO EVER FOR YOUR COMPLIANCE WITH OR BREACH OF THE SAME.

 9.3 WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENTS MADE BY ANYONE OTHER THAN US, (b) ANY CONTENT PROVIDED BY ANY THIRD PARTY OR (c) ANY EVENT HOSTED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.  IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE PRODUCTS OR OBTAINED FROM A THIRD PARTY.

9.4 TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILTY RELATED TO ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING OUR PRODUCTS AND FROM ANY CLAIMS RELATED TO THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).

 

10. LIMITATION OF LIABILITY AND INDEMNITY.   Under no circumstances and under no legal theory, tort (including negligence), contract, breach of statutory duty or otherwise, shall e•Contact System   or any of its underlying service providers, business partners, information providers, account providers, licensors, officers, directors, employees, distributors or agents (collectively referred to for purposes of this section as " e•Contact System") be liable to you or any other person for any loss of profits, revenue, business, goodwill or anticipated savings, or for any indirect or consequential losses, even if foreseeable or if e•Contact System shall have been informed of the possibility of such damages, or for any claim by any other party, other than where caused by e•Contact System’s material breach of this agreement, and regardless of the form of the action (whether in contract, tort (including negligence), breach of statutory duty, product liability or otherwise)SUBJECT TO APPLICABLE LAW, e•Contact System, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING:

You agree that e•Contact System shall not be liable for acts committed by you (or your failure to act) that involve a third party.  You also agree that e•Contact System under no circumstances will indemnify you for your acts (or your failure to act) towards a third party.

You agree to hold e•Contact System and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims"). e•Contact System reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by e•Contact System in the defense of any Claims.

To the maximum extent permitted by applicable law,

You agree that e•Contact System has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties."  You agree not to hold e•Contact System responsible for:

10.1 INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES;

 

10.2 DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET,      ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF  DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET e•Contact System SYSTEMS REQUIREMENTS.

 

10.3 ANY CLAIMS OR LIABILITY RELATED TO ANY CONTENT POSTED ON YOUR SITE OR IN ANY  MATERIALS YOU SEND USING THE SERVICES AND FROM ANY CLAIMS RELATED TO THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS.

THE ABOVE LIMITATIONS APPLY EVEN IF e•Contact System AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF e•Contact System, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.

11 CHANGES. We reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.

12. TERMINATION. e•Contact System may immediately, in its sole discretion and without notice terminate this Agreement or suspend the Services if you fail to comply with this Agreement or if you no longer agree to receive electronic communications. Upon termination you must immediately stop using the Services and any outstanding payments will become due.  Any termination of this Agreement shall not affect e•Contact System’s rights to any payments due to it.  e•Contact System may terminate a free account at any time.  Sections 2.2, and 3 through 14 will survive and remain in effect even if the Agreement is terminated.

13. EXPORT RESTRICTIONS. You acknowledge that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly.

14. GOVERNING LAW. North Carolina state law governs this Agreement without regard to its conflicts of laws provisions.

15. DISPUTES. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply North Carolina law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND e•Contact System ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.

To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to e•Contact System, in care of our registered agent Ingersoll and Hicks, PLLC, 1590 Westbrook Plaza Drive, Ste. 203,Winston-Salem, North Carolina 27103. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA's rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA's rules. 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. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 14 shall survive expiration, termination or recession of this Agreement.

16. GENERAL. This Agreement, including the Additional Terms below, is the entire agreement between you and e•Contact System and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any provision of this Agreement shall be held to be void, invalid, or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.  If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without written approval of e•Contact System. However, e•Contact System may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by e•Contact System or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact e•Contact System via an email to: support@econtactsystem.com.

 

March 1, 2013