Terms and Conditions of Use
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE PRODUCTS.
Last revised: December 07, 2020
TABLE OF CONTENTS:
- General Terms and Conditions
- Communication with You
- Copyright and Trademark Information
- Fees; Payment; Taxes
- Access and Use of the Site and the Products
- Communities and Marketplace
- Restrictions and Responsibilities
- Warranty Disclaimer; Remedies; Release
- Limitation of Liability
- Restricted Persons; Export of the Site, the Products or Technical Data
- Third-Party Websites and Services
- Notice and Take Down Procedures; Copyright Agent
- Open Positions on Career Pages
- California-Specific Terms
- International Use; Prohibited by Law
- Additional Resources
1. General Terms and Conditions.
Constant Contact, Inc. (“Constant Contact,” “we,” “us,” or the “Company”) provides small businesses and organizations with a variety of products and services and related offerings, features and functionalities (individually, a “Product” and collectively, the “Products”). This website (including any related sub-site, service, feature or functionality) (the “Site”) and the Products are provided subject to these Website and Product Terms and Conditions of Use, as they may be amended by us, and any guidelines, rules or operating policies that we may post on this website, including our Anti-Spam Policy, our Prohibited Content and Commerce Statement and our Privacy Notice, which are specifically incorporated herein by reference (collectively, the “Agreement”). We may amend this Agreement from time to time due to changes to the Site or the Products, to account for developments under the law, or for any other commercially reasonable reason. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site) and, if you do not want to agree to any such amendment, you should stop using the Site and the Products and contact us to cancel your account. By checking the box or clicking the button next to a link to these terms on any of our sign-up pages, by logging in to your Constant Contact account, by accessing the Site or by accessing any of the Products (including by means of any API interface), you accept this Agreement on behalf of yourself and any business or organization you represent (collectively, “you”). Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form you provide are specifically null and void.
1.2. Minimum Age and Ability to Bind.
The Site and the Products are available only to persons or organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, individuals under the age of 18 are not authorized to use the Site or the Products. If you are using the Site or the Products on behalf of an organization, you represent and warrant that you have the ability to bind such organization by your use of the Site and the Products.
You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on the Site, and you agree to update such information if it changes.
1.4. Account Access.
We may, in our discretion, permit you to authorize additional users to use your Constant Contact account. For purposes of this Agreement, you are the “Account Owner” and any other users you authorize will be deemed “Authorized Users.” You will be responsible for each Authorized User’s use of your Constant Contact account and each Authorized User’s compliance with this Agreement.
1.5. Username and Password.
You are responsible for maintaining the security of your Constant Contact account, passwords and files (including the passwords and files that your Authorized Users, if any, have access to). We will accept the instructions of any individual who claims to be authorized to direct changes to your Constant Contact account so long as such person presents the Account Owner username and password or provides other appropriate account identifying information, as determined by us in our sole discretion, by email or by phone, or through a Third Party Service (as defined below), if any, through which you access the Site or the Products. We have no knowledge of your organizational structure, if you are registering for the Products as an organization, or your personal relationships, if you are a person. You will be solely responsible and liable for any activity that occurs under your username and the activities of your Authorized Users, if any, and we shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorized use of your Constant Contact account or any other breach of security.
2. Communication with You.
We reserve the right to send messages to you to (a) inform you of changes or additions to the Site, the Products, this Agreement or the Fee Schedule (defined below), (b) to inform you of violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, (c) to inform you of any other matter related to the Site, the Products or this Agreement or (d) for marketing and other purposes. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement. You may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us.
You agree that we may, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You further agree that any Authorized Users or anyone else you authorize to use your account consents to such monitoring or recording as well. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved or even if retained and retrievable will be made available to you.
By entering into this agreement, you acknowledge that we may contact you via telephone (either by a live person, automatic dialer, prerecorded message or a combination of the foregoing) to discuss the products and you consent to such contact. Further, you consent to receive such phone calls at the telephone number you entered on the site. You do not need to agree to this provision in order to use the Site or purchase the Products and if you would like us not to contact you by telephone, please send an email to email@example.com. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or text you in order to provide you with your password or other information you request.
3. Copyright and Trademark Information.
The Site and the information it contains, are the property of Constant Contact and, in some cases, its affiliates and licensors, and are protected by United States and international intellectual property laws. “Constant Contact” and the Constant Contact logo are registered trademarks of Constant Contact in the United States and other countries. This is not intended as a complete list of our trademarks and other Constant Contact product or service names or logos appearing in the Site may be trademarks of Constant Contact or its affiliates.
4. Fees; Payment; Taxes.
(a) Fee Schedule. Once you have completed any applicable free trial period or exceeded any limits described on the applicable fee schedule (the “Fee Schedule”), you will be subject to fees in accordance with the Fee Schedule. Applicable fees will be billed monthly or your pre-paid account will be debited monthly for the Products, even if you are not actively using the Products. The Fee Schedule is subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your account. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule, but you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by us and any applicable discounts. You acknowledge and agree that our measurements are the definitive measurements for payment due and owed hereunder.
(b) Other Billing Arrangements. If you receive the Products by means of one of our resellers or partners (a “Reseller”), the Reseller may be responsible for billing you for the Products and you may be subject to a different fee schedule and additional terms and conditions. You are responsible for reviewing your fee schedule and any additional terms and conditions. In the event of any conflict between this Agreement and the Reseller’s terms and conditions, this Agreement shall control except with respect to the payment provisions set forth in this Section 4. If you cease to be a customer of a Reseller, any special pricing, benefits or terms may no longer be available to you. We may rely on information provided by the Reseller, if any, with respect to the status of your Constant Contact account.
(c) Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.
4.2. Payment; Taxes.
(a) Payment. Payment for the Products, including any add-on Products, will be made in advance by a payment method accepted by us. Checks (including e-checks or those sent by mail) will be accepted for prepayments of at least six months. Fees are only payable in the currencies made available to you when you purchase our Products. If the monthly payment option is selected or if you have previously provided us with your credit card or other payment method for payment, you hereby authorize us to charge by that payment method for such amounts on a regular monthly basis beginning at the end of any applicable free trial period and continuing until such time as you terminate your subscription to the applicable Product(s) or your Constant Contact account is terminated. If we are for any reason unable to effect automatic payment, we will attempt to notify you by email and your Constant Contact account may be disabled until payment is received.
(b) Taxes. We collect and remit tax from our customers located in certain state, local and foreign jurisdictions where software delivered as a service is taxable and where we have either physical, economic, affiliate or click-through nexus or permanent establishment. We determine your local taxing jurisdiction based on the billing address that you list in the “My Account” section of your Constant Contact account. Fees set forth in the Fee Schedule do not take into account any taxes.
You agree to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this Agreement, use or possession of the Products or your products or services.
5. Access and Use of the Site and the Products.
5.1. Prohibition on Spam; Permission Practices; Message Requirements.
(a) Prohibition on Spam; Permission Practices. The Products may not be used for the sending of unsolicited email messages (sometimes called “spam”). All messages sent by means of the Site or the Products shall be in compliance with our Anti-Spam Policy.
You are responsible for ensuring that your use of the Site and the Products 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 Site and the Products if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you.
You agree to import, access or otherwise use only contact lists in connection with the Site and the Products for which all listed parties have consented to receive correspondence from you (such as by opting into your “Join My Mailing List” link or similar list sign-up technology). 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®. If you have used our “confirmed opt-in” feature that allows you to request a recipient to confirm that you have the recipient’s permission to send messages to such recipient (assuming such use is permitted by laws applicable to you), 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 agree not to send messages through the Site or the Products to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.
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 campaigns from entering, utilizing or remaining within our network.
(b) Messages. In your use of the Site or the Products, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.
You agree that you are the sole or designated “sender” (as such term is defined in the United States 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 Site or the Products. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Site or the Products (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”)).
You agree that for any email message sent by you using the Site or the Products, (i) the “from” line of any email message sent by you using the Site or the Products will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the “subject” line of any email message sent by you using the Site or the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.
(c) Unsubscribe. Every email message sent in connection with the Products must contain an “unsubscribe” link that allows contacts to remove themselves from your mailing list and a link to the then-current Customer Contact Data Notice description. 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 Constant Contact 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 other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Constant Contact account and this Agreement.
You agree that you shall not utilize the Site or 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) (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.
5.2. Compliance with Laws.
The Site and the Products shall only be used for lawful purposes and you shall use the Site and the Products only in compliance with this Agreement and all other applicable U.S., state, local and international laws in your jurisdiction, including, as applicable:
- the CAN-SPAM Act;
- Canada’s Anti-Spam Legislation;
- California Consumer Privacy Act (“CCPA”);
- the European Union’s General Data Protection Regulation 2016/679 (“GDPR”);
- Brazil’s Lei Geral de Proteção de Dados Pessoais (“LGPD”);
- any policies and laws related to unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws;
- laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of your products or services;
- laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards;
- laws that govern lotteries, sweepstakes, contests and promotions; and
- laws that govern the collection of donations and charitable giving.
You further agree to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of our Site or Products.
You may not use our Site or Products for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
You are responsible for determining whether our Site or Products are suitable for you to use in light of any regulations, such as the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), European data privacy laws, or other laws. If you are subject to a particular regulation and you use our Site or Products, then we will not be liable if our Site or Products do not meet those requirements.
5.3. Restrictions on Use.
We prohibit the use of the Site or the Products by any person or organization that violates our Prohibited Content and Commerce Statement. You further agree to comply with the following in connection with your use of the Site and the Products:
- You may not access or use the Site or the Products in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Site or the Products that is not authorized by us (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction, access to, or distribution of the Site or the Products).
- You shall not use the Site, the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party (except as expressly permitted by our partner programs).
- Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with Site, the Products or the Software, or any content, including but not limited to newsletters distributed to you by us in connection with the Products.
- You may not use any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Site or the Products for any unauthorized purpose.
- You may not use the Site or the Products in a way that, to be determined in our sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to the Site or the Products, including Constant Contact’s servers, computer network, or user accounts.
- You may not use the Site or the Products in a way that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Site or the Products.
- You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Site or the Products for public or commercial purposes without our express written permission.
- You shall not interfere with or disrupt the Site or any related Constant Contact websites or servers or networks connected to the Site or the Products.
- You shall not restrict or inhibit any other user from enjoying and using the Site or the Products.
- You shall not use the Site or the Products in violation of applicable law or third party rights (including third party terms of service), and shall not use the Site or the Products for hosting content (for example, images and documents) that infringes on the intellectual property rights of others.
- You shall not repeatedly upload and remove unique email addresses, materially misrepresent the number of contacts you initially intend to include in your account upon signing up for the Products, or otherwise try to manipulate data in an attempt to circumvent our Fee Schedule or other billing procedures.
- You shall 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 may only use our templates, any images we provide, or any other features or functionality of the Products with the Products themselves (for example, you may not take an image or template and use it on materials you create without using the Products). This restriction also applies to customized templates prepared by our professional services group.
- You shall not use documents and images hosted by us on servers controlled by us for any purpose whatsoever other than in connection with the Products. If you own the document or image, you can use it outside of the Products provided it is not hosted by us.
- You shall not include any incentives (for example, coupons, discounts or awards) in any messages you send by means of the Site or the Products that encourage a recipient to forward the message to another recipient, other than as expressly encouraged and permitted within the applicable Product.
5.4. Limitations on Use.
You understand that not all messages or campaigns sent through use of the Site or the Products will be received by or will be capable of being viewed by their intended recipients or will be viewable by your recipients in the same way they appear in our product environment. You further understand that delivery of messages by means of the Site or the Products 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 also 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 Site or the Products, including the maximum number of messages or campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may be transmitted by means of the Site or the Products. We reserve the right to modify, revise, suspend or discontinue any Product in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Products in any manner. If we discontinue any Product in its entirety that you are using, we will provide you with advance notice and an opportunity to cancel your account.
5.5. Contacts’ Privacy.
(a) Customer Privacy Notice. You shall adopt and comply with your own “customer privacy notice.” Your privacy notice will be posted so that your contacts have notice of your data collection and use practices, including your practices with respect to contact data that you obtain from us, and will otherwise comply with applicable law. We have provided you with information regarding our use of contact data in our Customer Contact Data Notice, which may be modified by us from time to time. Your customer privacy notice will either adopt the Customer Contact Data Notice or include substantially similar disclosure (and update such disclosure from time to time) so that your contacts are aware of how their data is used by you and us.
(b) Sensitive Information. You will not import or incorporate into any contact lists or other content you upload to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind. Notwithstanding the foregoing, if you are a covered entity under HIPAA, you agree to contact us at firstname.lastname@example.org in order to request a business associate agreement prior to using the Product with your contacts. If we agree to enter into a business associate agreement with you, you may include protected health information, subject to this Agreement and the terms of the business associate agreement (additional fees may apply).
5.6. Your Products and Services.
Among other things, the Products may permit you to (i) create an e-commerce store (“Store”) for selling your products and/or services (“Store Content”); (ii) book appointments with your users (“Appointments”); (iii) communicate about or administer contests, competitions, sweepstakes, or other similar promotional events (“Promotions”); (iv) sell your products and services and tickets to your events to your subscribers and others in the form of various promotional deals, coupons, tickets, vouchers, passes or cards (each, a “Deal”); and (v) collect donations (each, a “Donation Campaign”).
You are solely responsible for your products and services, events, Store Content, Appointments, Promotions, Deals and Donation Campaigns, including any and all injuries, illnesses, damages, claims, liabilities and costs suffered in respect thereto. You shall bear all costs of procuring and delivering your products and services, Store Content, fulfilling your Appointment bookings, Promotions (including any prizes offered), Deals, running your events and Donation Campaigns, including any associated shipping, taxes and any other fees associated therewith. You hold all necessary governmental and third party licenses, approvals, authorizations and registrations necessary to offer your products and services, Store Content, Appointments, Promotions, Deals and run your events and Donation Campaigns, if any.
You agree to provide your products and services, Store Content, Appointments, Promotions, Deals, and run your events and Donation Campaigns in a safe and professional manner, consistent with industry best practices, including keeping reliable records.
You will be solely responsible for any and all statements and promises you make and for all user assistance, warranty and support of your products and services, Store Content, Appointments, Promotions, Deals, events and Donation Campaigns and to comply with any promises you make to your customers, users, donors and donees. You further agree to provide your contact information for any end-user questions, complaints or claims. You agree that your Promotions and Deals will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, this Agreement and your own requirements (the “Offer Terms”) and you agree to comply with the same. Any such Offer Terms must be presented to prospective purchasers before they commit to make a payment or take any other action and must include any terms provided by us. If you use the Site or the Products to offer a Promotion, you are further responsible for ensuring that you comply with applicable law relating to eligibility requirements (for example, age and residency restrictions), the selection of winners and all prizes offered in connection with the Promotion (for example, registration and obtaining necessary regulatory approvals) and that your Offer Terms include the foregoing to the extent applicable. You shall ensure that the rules for each Promotion (i) state that each entrant or participant unconditionally releases us of any liability arising from the Promotion, and (ii) inform each entrant or participant that the Promotion is in no way sponsored, endorsed or administered by, or associated with, us.
5.7. Constant Contact Content; Licensed Images; Authorized Use.
(a) Constant Contact Content.. Except for your contact lists and content, as further described in Section 7.4(b) below, all content made available through the Products, including any images made available through any email or website builder tools provided by Constant Contact (the “Licensed Images”), designs, templates, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Products (collectively with the Licensed Images, the “Constant Contact Content”), are the property of Constant Contact or its licensors. No Constant Contact Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Constant Contact Content.
(b) Licensed Images.. To the extent applicable, you are granted a limited, revocable, non-sublicensable license to use the Licensed Images solely in connection with the Products. You are prohibited from using any Licensed Images: (i) with pornographic, defamatory, or unlawful content or in such a manner that infringes upon any third party’s trademark or intellectual property rights; (ii) as a trademark, service mark, or logo; and (iii) portraying any person depicted therein (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model (a) in connection with pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; (b) in connection with the advertisement or promotion of tobacco products; (c) as endorsing a political party, candidate, elected official, or opinion; (d) as suffering from, or medicating for, a physical or mental ailment; or (e) engaging in immoral or criminal activities.
(c) Authorized Use.. Any use of the Constant Contact Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to your use of the Products and the Constant Contact Content granted herein. All rights of Constant Contact or its licensors that are not expressly granted in this Agreement are reserved to Constant Contact and its licensors.
5.8. Website Builder Services.
(a) Domain Names. In the event you register a domain through Constant Contact’s Website Builder product, you are subject to the Constant Contact Website Builder Domain Registration Agreement and the Domain Name Renewal Notification Policy,
(b) Store. If you elect to use a Store for selling your Store Content, you are solely responsible for any and all Store Content and any transactions or other activities conducted on or through the Store. Your Store activities are your responsibility and Constant Contact disclaims any and all liability related to any Store Content. You represent and warrant to Constant Contact that (i) you have all necessary rights to post or distribute such Store Content, and (ii) your Store Content does not infringe or violate the rights of any third party. You acknowledge and agree that Constant Contact may, but is not obligated to, monitor your Store and may take any corrective action in Constant Contact’s sole discretion, including without limitation removal of all or a portion of the Store Content, and suspension or termination of any and all Products without refund of any pre-paid fees. You hereby agree that Constant Contact shall have no liability due to any corrective action that Constant Contact may take, including without limitation suspension or termination of your Store. You acknowledge and agree that you are solely responsible for the following:
- all applicable laws and regulations related to the Store and any Store Content including any related consumer, data privacy, and e-commerce laws;
- taxes and fees associated with the Store, including taxes related to purchase or sale of products and services in connection with the Store;
- customer service for the Store, including any inquiries, concerns, warranties you may offer, or claims and complaints relating to the Store;
- fulfillment and the delivery of Store Content to your customers; and
- visibility for all terms and policies that may apply, including but not limited to privacy notices, cookie notices, return policies, and any offered warranties.
(c) LogoMaker. If you elect to use Constant Contact’s LogoMaker Service (“LogoMaker”) to create a logo or design for your use, you acknowledge that LogoMaker uses certain elements, including colors, fonts, icons, and other designs. These elements are also made available to other Users and, as such, any logo created by LogoMaker may be similar or identical to logos created by other Constant Contact customers who use LogoMaker. LOGOS CREATED BY LOGOMAKER ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND CONSTANT CONTACT MAKES NO WARRANTIES THAT THE LOGOS DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. It is your responsibility to determine (a) whether any logo created by LogoMaker is subject to any third party rights and (b) whether you may use and/or register your logo as a trademark. You may not assign or resell your LogoMaker logo to any third party, and you may not challenge the use or registration of any other logo created by LogoMaker on behalf of another Constant Contact customer.
(d) Appointment Booking. If you elect to use Appointments to schedule appointments through your website, you acknowledge that you are responsible for managing and fulfilling your appointments and service offerings. THE APPOINTMENTS SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND CONSTANT CONTACT MAKES NO WARRANTIES THAT THE SERVICE WILL PERFORM IN AN ERROR-FREE AND UNINTERRUPTED MANNER. CONSTANT CONTACT HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY FOR LOSS OF PROFITS OR BUSINESS RESULTING FROM YOUR USE OF THE APPOINTMENTS SERVICE.
For every listing, message or campaign sent or distributed via the Products, you agree that we may add a link to our Site and a statement such as “Email Marketing by Constant Contact” or “Powered by Constant Contact” in the footer or other similar location that does not unreasonably obscure the message or campaign.
6. Communities and Marketplace.
The Site may contain areas where you may be able to publicly post information or communicate with others (for example, discussion boards or blogs), review products and merchants and otherwise submit content, including the Constant Contact Community and the Constant Contact Marketplace (the “Communities”). You agree that you are responsible for your own use of such Communities, for any posts you make and for any consequences thereof. You agree that we are not responsible for the content of any postings in any Community and have no duty to monitor such Communities or to correct any erroneous statements set forth therein. Any information you post may be accessible to anyone with Internet access, and any personal or other information you include in your posting may be read, collected and used by others.
You agree that you will use any such Community in compliance with all applicable laws and this Agreement. You further agree to abide by the Constant Contact Community Terms and Conditions of Use with respect to your use of the Constant Contact Community and the Constant Contact Marketplace Terms and Conditions of Use with respect to your use of the Constant Contact Marketplace. In the event that you violate any provision of the Constant Contact Community Terms and Conditions of Use or the Constant Contact Marketplace Terms and Conditions of Use, in our sole discretion, we reserve the right to terminate your access to or use of the Site or the Products, disable your Constant Contact account or access to the Site or the Products, and remove all or a portion of your content, in each case, with or without cause, with or without notice and without refund.
We reserve the right, but shall have no obligation, to investigate your use of any community for any reason, including in order to (a) determine whether a violation of this Agreement has occurred, or (b) comply with any applicable law, legal process or governmental request. We have no obligation to maintain or continue operation of any Community, and we may cease operation of, or modify, all or any portion of any such Community at any time in our sole discretion and without notice to you.
Many of the products and services being promoted by means of the Communities are offered by and are the sole responsibility of the person or entity that made such postings. We do not endorse and are not responsible for (i) any third party products or services marketed or made available through the Communities, or (ii) any purchase or other transaction resulting from or associated with your use of the Communities.
7. Restrictions and Responsibilities.
7.1. No Rights in Software.
This is an Agreement for services and access to the Site, and, except as expressly set forth herein, you are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Site or the Products or any software, documentation, or data related to the Site or the Products (“Software”); remove any proprietary notices or labels from the Site or the Products or any Software; modify, translate, or create derivative works based on the Site or the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or the Products or any Software. If you are using the Site or the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site, the Software or the Products, then you hereby covenant that, prior to engaging in such activities, you will first request that we perform such work at our standard professional services rates. We can then decide either: (a) to perform the work in order to achieve such interoperability and charge our then standard rates for such work to you; (b) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (c) to provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
7.2. Monitoring and Removal.
Although we have no obligation to monitor the content provided by you or your use of the Site or the Products, we may do so and may block any messages or campaigns, remove any content, including websites, surveys, event registrations, social campaigns, Store Content, Appointments, Promotions, or Deals, or prohibit any use of the Site or the Products that we believe may be in violation of the foregoing or any other provision of this Agreement. You further understand and agree that we and any applicable third party who supports, posts, publishes or distributes your websites, social campaigns, Promotions, or Deals also has the right to reformat, edit, monitor, reject, block or remove any of your websites, social campaigns, Promotions, or Deals at any time. In no case will the foregoing make us responsible or liable for compliance with any such laws or obligations, for which you remain solely responsible and liable.
You acknowledge that we may from time to time provide you with marketing advice and other coaching, template design, frequently asked questions and tips on best practices and complying with applicable law, including any sample Offer Terms. You acknowledge that such assistance and information is provided as a convenience to you and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed. We do not warrant or guarantee that use of or compliance with this information will be sufficient to comply with your obligations hereunder, applicable law or with third party rights.
7.4. Your Information and Content.
(a) Your Information. In using the varied features of the Site or the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to us and we may collect information about your use of the Site or the Products. We may use this information in accordance with our Privacy Notice and relevant “just-in-time” notices, if any, provided at the point of information collection or use.
You agree that we may share non-personal information with certain third parties, including the media, industry observers, marketing and advertising partners, vendors, customers, potential customers, and partners. For example, without limitation, we disclose mobile search trends, email open rates by industry, campaign best practices or the number of users that have been exposed to, or clicked on, our websites or evaluated or purchased our products and services.
(b) Your Content and Contacts. We will also obtain any information that you provide to us in connection with your use of the Site or the Products, such as contact lists (including email addresses and phone numbers of your contacts) and content (including your website). We acknowledge your ownership rights in such contact lists. As more fully described in our Privacy Notice, we will never sell or rent your contact lists to anyone without your permission.
You hereby grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display your contacts and content only as required by us to offer and operate the Products and related services and, where applicable as permitted by our Data Processing Addendum and California-Specific Terms and as described in our Privacy Notice.
You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your contacts and content, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to your contacts and content required for us to use your contacts and content as contemplated by this Agreement.
(c) Submissions. If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Site or otherwise (“Submissions”), you agree such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.
(d) Automated Data Collection. You consent to us collecting data from your website, including websites not provided, maintained, or hosted by Constant Contact, through automated means, such as through harvesting bots, robots, spiders, or scrapers (“Automated Data Collection”) and the use of that data for internal business purposes, including to provide you with automatic email templates and to better understand our customer base. We will not use Automated Data Collection to collect data from your website if you have set the /robots.txt file to disallow such collection.
(e) Backups. You are responsible for making frequent backup copies of your contacts and content.
You may terminate your Constant Contact account at any time by calling Constant Contact Customer Support. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR CONSTANT CONTACT ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR CONSTANT CONTACT ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR CONSTANT CONTACT ACCOUNT AND THIS AGREEMENT.
We may, in our sole discretion, whether to comply with applicable law or regulation or otherwise, terminate your Constant Contact account or your access to or use of the Site or the Products, disable your Constant Contact account or access to the Site or the Products, and/or delete or confiscate all or a portion of your contacts, files, content, and/or domain name registrations, cancel or suspend your Store or any of your events, social campaigns, Appointments, Promotions or Deals or Donation Campaigns, or put your Constant Contact account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Upon request within 30 days of your termination, we will provide the list of unsubscribe requests from your Constant Contact account to you. Under the CAN-SPAM Act, Canada’s Anti-Spam Legislation and the GDPR, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Constant Contact account and this Agreement.
If your Constant Contact account is classified (at our sole discretion) as inactive for over 120 days, we have the right to permanently delete any of your contacts and content.
Upon termination of your Constant Contact account by you or us, this Agreement and any rights or licenses granted to you hereunder shall immediately terminate except that (a) all sections of this Agreement that by their nature should survive termination will survive termination, including, Sections 1- 3, 4.1(c), 4.2 and 5-18 (other than the license set forth in Section 5.7(b)), and (b) for the avoidance of doubt, you will continue to be responsible for redemption of coupons and fulfillment for Store Content sold or Promotions and Deals run prior to such termination in accordance herewith and any promises you made with respect to the funds associated with any Donation Campaigns.
You hereby agree to defend, indemnify and hold harmless us, our affiliates and our underlying service providers (i.e. vendors who help us provide the Products), business partners, third-party suppliers and providers, account providers, licensors, distributors and agents and our and their respective officers, directors, employees, distributors and agents from and against any claims, damages, suits, actions, demands, proceedings (whether legal or administrative), losses, liabilities, penalties, settlements and expenses (including costs and reasonable attorneys’ fees) in connection with any claim or action that (a) arises from any actual or alleged breach by you of this Agreement; (b) arises from your contacts and content, including the content or effects of any messages you distribute, websites you publish, events you host, surveys you administer, social media campaigns you publish, Store Content, Appointments, Promotions or Deals you offer, donations you collect or products or services you sell (including claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, breach of Offer Terms, defective products or services or unclaimed property); (c) arises from your provision of incomplete or inaccurate information to your contacts or customers; (d) arises from your activities or postings in any Community; (e) arises from your use of any Third Party Service (as defined below); or (f) otherwise arises from or relates to your use of the Site or the Products. You agree to provide us with prompt written notice in the event of any such claims or actions. In addition, you acknowledge and agree that we have the right to seek damages when you use the Site or the Products for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Site or the Products, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.
10. Warranty Disclaimer; Remedies; Release.
YOU EXPRESSLY AGREE THAT THE SITE AND THE PRODUCTS (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITE OR THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE SITE OR THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY STORE CONTENT, EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE PRODUCTS SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE PRODUCTS.
TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE CONTACTS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. 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).
11. Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF CONSTANT CONTACT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CONSTANT CONTACT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “CONSTANT CONTACT”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CONSTANT CONTACT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF CONSTANT CONTACT TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY CONSTANT CONTACT TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that Constant Contact has set its prices and entered into this 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.
12. Restricted Persons; Export of the Site, the Products or Technical Data.
The Site and the Products are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury’s Office of Foreign Assets Control (“OFAC”), Department of State, and other United States authorities (collectively, “U.S. Trade Laws”). You may not use the Products to export or reexport, or permit the export or reexport, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Products, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, Constant Contact also does not register, and prohibits the use of any of our Products in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Products.
13. Third-Party Websites and Services.
The Site and the Products include social media tools that may, among other things, allow you to manage access, post content and manage content on social network platforms (for example, LinkedIn®, Facebook®, Instagram® and Twitter®). These tools also allow you to use the Products to access and analyze information found on social media sites. You hereby grant us all required permissions to access such sites and provide this functionality.
You agree to abide by the terms and conditions of any applicable Third Party Service (including Facebook, Paypal, Google and Apple). Notwithstanding anything set forth herein to the contrary, you will abide by this Agreement regardless of anything to the contrary in your agreement with any third party and you shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.
We may terminate any Third Party Service’s ability to interact with the Site or any of the Products at any time, with or without notice, and in our sole discretion, with no liability to you or to any third party. Any Third Party Service may take actions to impact our ability to make available some or all of the features of the Site or the Products at any time, with or without notice, and we will not be liable to you or to any third party for any such actions. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Third Party Services.
In no event shall any reference to any third party or third party product or Third Party Service be construed as an approval or endorsement by us of that third party or of any product or service provided by such third party.
If you use the Products to collect payments (including Store Content, registration for events, Deals, Digital Rewards, donations or products or services), you are responsible for the collection and administration of such payments and compliance with all applicable laws relating thereto, including all applicable domestic or international local, state or federal tax requirements. We do not hold your funds or those of your contacts, subscribers, customers, participants, event registrants or donors at any time. You are responsible for any refunds associated with any payments.
14. Notice and Take Down Procedures; Copyright Agent.
If you believe any materials accessible on or from the Site or the Products infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from the Site or the Products by contacting our copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (for example, the URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) email address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Our agent for copyright issues relating to the Site and the Products is as follows:
Constant Contact, Inc.
1601 Trapelo Road
Waltham, MA 02451
Phone: (781) 472-8100
For all email submissions please include the subject line: DMCA Takedown Request.
If you have received a notification that a claim of infringement has been made against you or your material has been removed or access to it has been disabled, you may send us a counter-notification to our copyright agent identified above that includes the following information:
- Identification of the material that has been removed or to which access has been disabled and the location it appeared before it was removed or access was disabled, or any other pertinent information that will allow us to locate the material.
- Your name, address, phone number, and a statement that you consent to the jurisdiction of the federal district court for the judicial district in which your address is located, or if you are located outside the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification or the agent of such person.
- A statement indicating that “under penalty of perjury” you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- Your signature or the electronic equivalent.
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of Constant Contact account holders who are repeat infringers.
If you believe that a domain name registered through us infringes your trademark or other intellectual property rights, please refer to ICANN’s Uniform Domain-Name Dispute-Resolution Policy for information about your options. If you have a complaint about the use of your trademark on a website hosted by Constant Contact, please email us at email@example.com.
15. Open Positions on Career Pages.
We may list open employment positions on the Site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on the Site or made available through the Site as an offer for employment, nor should you construe anything on the Site as a promotion or solicitation for employment not authorized by the laws and regulations of your location.
16. California-Specific Terms.
The California-Specific Terms will apply if you are a Business under the CCPA and you share with us Personal Information (as that term is defined under the CCPA) about California residents which would otherwise constitute a Sale (as that term is defined under the CCPA).
17. International Use; Prohibited by Law.
In recognition of the global nature of the Internet, you agree to comply with all local rules where you reside or your organization is located regarding online activities, email and the Site or the Products. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Site or the Products are controlled and operated by us from the United States (although we may share data with third parties around the world to assist us in providing the Site or the Products) and we make no representation that the Site or the Products are appropriate or available for use in other locations. Those who access the Site or the Products from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Site or the Products where prohibited by law.
For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (once in effect) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your contacts’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) of such personal data. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).
To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process personal data and send communications to that individual on your behalf. The additional data processing terms set forth here shall apply where you are a Controller subject to the GDPR.
18.1. Full Force and Effect.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
18.2. Entire Agreement.
We and you agree that this Agreement is 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 this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
18.4. Further Assurances.
You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
18.5. Force Majeure.
We are not liable for any default or delay in the performance of any of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder.
18.6. Third Party Beneficiaries.
Constant Contact’s affiliates, underlying service providers, business partners, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.
18.8. No Agency.
Except as expressly set forth herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
18.9. Attorney Fees.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
18.10. Governing Law and Legal Actions.
If you signed up to use the Site or the Products prior to June 7, 2016, the following terms shall apply:
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Boston, Massachusetts.
If you signed up to use the Site or the Products on or after June 7, 2016, the following terms shall apply:
You hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement, whether in contract, tort, fraud, misrepresentation or any other legal theory. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in Boston, Massachusetts, unless you are a “consumer” as defined under the AAA rules. Disputes with consumers, as therein defined, will be resolved by binding arbitration conducted under the AAA’s Consumer Arbitration Rules, as applicable. Consumers may request that the arbitration occur in or near the city/state stated in your account record with us. The procedures for commencing an arbitration are available here (provided however, that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court only on an individual, non-class basis).
ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CUSTOMERS, SUBSCRIBERS OR USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Only a court, and not an arbitrator, shall determine the validity and effect of the class action waiver. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate a litigation or any other proceeding against us in violation of this paragraph, you agree to pay our reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.
The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of conflict or choice of law rules.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
18.11. Additional Information.
If you have any questions about the rights and restrictions above, or would like to report any inaccuracies or errors, please contact us by email at firstname.lastname@example.org.
19. Additional Resources.
- Anti-Spam Policy
- Prohibited Content and Commerce Statement
- Privacy Notice
- Customer Contact Data Notice
- Information Security Policy
- Community Terms and Conditions
- MarketPlace Terms and Conditions
- Accessibility Statement
- Website Builder Terms of Service
- Text Messaging Terms and Conditions of Use
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