TERMS AND CONDITIONS OF USE
These terms and conditions (the "Agreement") create a binding contract between "Customer" and Yesmail Direct ("Yesmail") and govern Customer's use of the applicable service, information, or product ("Product"). The use of the Product constitutes Customer's consent to this Agreement; therefore, do not use the Product if these terms are unacceptable. Yesmail further reserves the right to modify these terms from time to time by providing the updated terms on its website.
Customer Responsibilities. Customer represents, warrants and covenants to Yesmail that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws through which it was organized; (iii) it has full power and authority to enter into this Agreement which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it is and will be truthful and accurate; (v) its use of the Products will at all times be in strict accordance with all applicable laws, rules and regulations, including but not limited to those concerning privacy, direct marketing, consumer lending, employment and email transmission; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Product.
Customer acknowledges that it is Customer's sole responsibility to determine the applicability of any laws, rules, regulations and ordinances to its use of the Products and Customer shall be solely responsible for the use of the Product and information contained therein. Customer further acknowledges that Yesmail is a member of the Direct Marketing Association ("DMA") and as such Customer warrants that it will comply with the DMA guidelines to the extent that they are applicable to Customer. In addition, Customer acknowledges that Customer has read the Yesmail Privacy Statement and will comply with the terms and policies therein
Customer has the sole duty of receiving an explicit "opt-in" from each recipient prior to forwarding information to Yesmail. Failure to uphold this duty or complaints arising from Customer's use of the service, as determined solely by Yesmail, may result, in addition to any other remedies available to Yesmail, in an immediate termination of the service and a full forfeiture of all Customer's payments and owed charges. Customer shall indemnify and hold harmless Yesmail, and any of its affiliates and their respective officers and employees from and against any loss, liability, damage, cost or expense, including reasonable attorneys' fees arising out of or in any way related to the breach of this Agreement.
Disclaimer of Warranty and Limitation of Liability. The Product is provided on an "as is" basis. Yesmail does not assure or warrant the correctness, comprehensiveness or completeness of the Product and Customer agrees and acknowledges that Yesmail shall not be liable for any loss or injury caused in whole or in part by contingencies beyond its control. EXCEPT AS EXPLICITLY PROVIDED FOR BELOW, YESMAIL HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. YESMAIL IS A DISTRIBUTOR AND NOT A PUBLISHER OF THE CONTENT SUPPLIED BY THIRD PARTIES AND USERS OF THE SITE; AS SUCH, YESMAIL EXERCISES NO EDITORIAL CONTROL OVER SUCH CONTENT. CUSTOMER EXPRESSLY AGREES THAT YESMAIL SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO GENERAL, DIRECT, SPECIAL, INCIDENTAL, AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES) WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE AND/OR USE OF THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT OR PURSUANT TO SOME OTHER THEORY AND WHETHER THE POSSIBILITY OF SUCH DAMAGES WERE MADE KNOWN OR WERE FORESEEABLE. IN NO EVENT SHALL YESMAIL'S ENTIRE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO YESMAIL UNDER THIS AGREEMENT. IN LIEU OF ANY AND ALL SUCH WARRANTIES, Yesmail HEREBY OFFERS THE FOLLOWING LIMITED WARRANTY: CUSTOMER SHALL HAVE FOURTEEN (14) DAYS AFTER PERFORMANCE OF YESMAIL'S SERVICES TO INSPECT THE PRODUCT AND NOTIFY YESMAIL OF ANY PROBLEMS OR MISTAKES. If Yesmail has made a material mistake, then Yesmail will make a commercially reasonable attempt to correct the mistake at no additional charge. In the alternative, Yesmail at may at its discretion, refund a portion of the purchase price or the whole purchase price to compensate for the defect. If Customer does not notify Yesmail within such fourteen (14) day period of a problem or mistake, Customer then accepts the Product "as is." After the fourteen (14) day period has elapsed, Yesmail shall have no liability whatsoever to Customer. In addition, Customer acknowledges that Customer has read the Yesmail Privacy Statement and it will comply with all other terms and policies therein. Yesmail will not retain any information originally provided by Customer except as needed to perform this Agreement or as required by law. Neither party gains title to any information or data that it originally receives from the other.
Choice of law, forum, and jurisdiction. This Agreement and any disputes arising hereunder, or otherwise related to the sale and/or use of the Product, or any portion thereof, shall be governed by the applicable laws of the United States and the internal laws of the state of Nebraska, without regard to any conflicts of law principles. Both Yesmail and Customer agree that any action, suit, or other legal proceeding regarding any matter arising under or relating to any provision of this Agreement, or otherwise relating to the sale of the Product shall be commenced only in the state or federal courts located within Douglas County, Nebraska, United States of America and each party to this Agreement consents to the exclusive jurisdiction of such courts.
General. The terms herein, along with the policies contained within the Yesmail Privacy Statement, sets forth the entire understanding between the Customer and Yesmail and supersedes all previous agreements, provisions or representations relating to the foregoing. If any provision of this Agreement shall be found to be unlawful, void or unenforceable for any reason, that provision shall be deleted from this Agreement and such deletion shall not affect the validity and enforceability of the remaining provisions.
Payment and Term. This Agreement is only effective at the discretion of Yesmail. The initial term of the subscription for the Service shall begin on the date that the Customer's account has been upgraded from a trial account to a subscription account (the "Start Date") and will continue for the 3, 6, or 12 month period that the Customer selects, thereafter the subscription shall automatically renew for successive 1 month periods (that begin on each successive anniversary of the Start Date following the initial term) at Yesmail's then prevailing subscription fee rates. If either party does not want the term to automatically renew, it must notify the other party in writing of such election to terminate no later than thirty (30) days prior to the end of the then current term.
If Customer agrees to an initial term of: (a) 6 months - the subscription fee shall be discounted by ten percent (10%) off the then-prevailing standard list pricing during the initial term; or (b) 12 months - the subscription fee shall be discounted by twenty percent (20%) off the then-prevailing standard list pricing during the initial term.
Customer agrees to pay Yesmail the applicable fees for the service, in effect at the time a fee is due and payable. Any and all fees are nonrefundable. Customer's acceptance of this Agreement constitutes its authorization for Yesmail to automatically charge the credit/debit card provided by Customer. Customer agrees to provide Yesmail with complete and accurate billing and contact information, including: name, street address, e-mail address, and name and telephone number of authorized billing contact. Customer agrees to provide Yesmail with updated information within thirty (30) days of any change to billing information. If billing information is determined to be fraudulent, Yesmail may immediately terminate this Agreement, and it reserves the right to pursue any and all legal remedies. If Customer's payment is declined, Yesmail may restrict Customer's ability to use the payment method that was declined. Failure of the recurring payment process does not absolve Customer's payment obligations under this Agreement.
Cost of collection and enforcement: BY ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF THE CUSTOMER YOU MAKE A PERSONAL GUARANTY TO BE HELD JOINTLY AND SEVERALLY LIABLE FOR ANY BREACH OF THIS AGREEMENT BY THE CUSTOMER. Customer agrees to reimburse Yesmail for all costs and expenses, including but not limited to, reasonable attorney fees and costs of collection, incurred by Yesmail in connection with the enforcement of this Agreement or any provision hereof.