TERMS & CONDITIONS
End user licence agreement
The terms and conditions in this agreement (the "Agreement") will govern your (the "User") access to Alienation Emu services and your use of the data you obtain by use of the services (the "Service"). Alienation Ltd (the "Company") grants to the User a non-exclusive right during the term of this Agreement to use the Service pursuant to the terms and conditions set out herein. Your use of the Service confers no title or ownership in the Service. All ownership rights remain with The Company or its third party suppliers, as the case may be. This Service may not be used for the sending of unsolicited email. The following are the terms and conditions for use of the Service. By signing-up or by logging in to Alienation Emu, you accept these terms and conditions.
1. Service and SupportThe Services are provided subject to this Agreement, as it may be amended by The Company, and any guidelines, rules or operating policies that The Company may establish and post from time to time, including without limitation The Company's email Privacy Policy (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). The Company offers its services on an "as is" basis. Through the Services, Alienation Emu provides marketing tools, information, information management and storage and support. Users can create and send email campaigns using the tools to distribute content supplied by the User to email addresses also supplied by the User. The User acknowledges that The Company does not create any content and that The Company is not the author or the publisher of any campaign. The Company reserves the right, but is not obligated to, review and approve any content posted by Users. The Company disclaims all copyright and other rights in such content and all responsibility for them. The Company retains the right to cancel and delete any campaign violating its Usage Policy. The Company reserves the right to amend or update these rules at any time without notice to the User by posting the latest End User License Agreement to its web site. All such changes shall become effective upon posting of the revised Agreement on the Service.
Subject to the terms and conditions of this Agreement, The Company hereby grants to the User a limited, non-exclusive and non-transferable right to access and use Alienation Emu in accordance with the specific limitations set forth in this Agreement and in any applicable Exhibit provided that an order for Alienation Emu has been accepted by The Company. Unless expressly provided in any applicable Exhibit, Alienation Emu shall be hosted and served and executed solely by a server under the direct supervision and control of The Company or its contractors. The client shall not receive a copy of Alienation Emu, nor have any other rights to Alienation Emu other than those granted under this Agreement.
You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an email address for your Alienation Emu account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. The Company reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
By permitting direct email campaigns, The Company makes no warranties or representations of any kind as to the accuracy of the content, legality or suitability of the subject matter. The Company specifically disclaims liability for direct, consequential or incidental damages arising from such campaigns. By posting an email campaign from Alienation Emu, Users warrant that the content is true, and that User will indemnify The Company against any and all, direct, indirect or consequential claims and alleged claims that may arise from User's use of the Services. Users will also indemnify The Company in the event that The Company shares the User's name with third parties for violations of the Usage Policy. By using the Services, the User is giving The Company permission to copy and/or store User content, contact lists and other information. The Company will not use the User content, contact lists or other User information for any purpose that violates its Privacy Policy. The Company reserves the right to amend its privacy policy from time to time without notice to the User by posting the updated Privacy Policy to its web site.
You acknowledge that from time to time delivery of email messages sent through Alienation Emu may be blocked or prevented at the destination mail servers. You are responsible for monitoring, correcting and updating the email addresses to which messages are sent through your Alienation Emu account.
As part of the Services, The Company will use reasonable efforts to ensure posting of the User campaign at the scheduled time. However, The Company reserves the right to alter the time and date of delivery of the campaign and the delivery of the results without prior notification to the User of such a change. The Company also reserves the right to limit the number of emails that can be sent, per campaign, at any time.
The Company will make Technical Support available to the User by telephone and email during working hours. If, for any reason, there is a need for the Services to be unavailable for more than 12 hours, due to routine maintenance or for any other reason out side The Company's control, The Company will give reasonable advance notification at the earliest possible opportunity and discuss suitable options to minimise the downtime.
The Company may store User information, content, contact lists, emails, campaign activity statistics, reports and other information in its databases for the User. The Company reserves the right to establish general practices and limits concerning the use of the Services, including without limitation the maximum number of days that information is stored, the maximum amount of disk space that will be allotted to each User, the maximum size of campaigns sent through Alienation Emu's Services, the scheduled time of a campaign and the maximum number of occasions that the User may access the Services in a given period of time. The Company has no responsibility or liability for the deletion or failure to store any messages, content or other information maintained or transmitted through the Services. At any time The Company may determine that User information can no longer be stored by The Company or deem User information to be inappropriate and remove it from its databases with or without notice to the User. If the User does not log into its account for more than 90 days, if the User does not pay for the services, if a User account is terminated for breach of this Agreement, or if the User fails to remedy any breach as notified by The Company, the account will become inactive. When an account is inactive, at The Company's sole discretion, The Company may notify the User by email. Inactive accounts have 30 days to become active after notification or the account and its data may be permanently removed from the Alienation Emu databases.
2. Eligibility
The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If a User does not qualify, do not attempt to use the Services. You will provide true, accurate, and current information about yourself as requested by the sign-up, registration or billing process. The Company may refuse to offer the Services to any person, corporation or organisation and may change the criteria for eligibility, at any time, in its sole discretion. The Company retains the right to terminate your account and your rights to use the Services if there are reasonable grounds to believe that any data you provide is or becomes untrue, inaccurate, not current or incomplete, or if you are in breach of the Usage Policy.
3. Charge for Services
The Services are charged according to the pricing plan selected and agreed upon by the User. All prices are in GB Pounds sterling. The Company reserves the right to modify or otherwise alter these plans, add new types of plans or vary the pricing at any time. These changes will be available to the User on the Emu website. The User is responsible for reviewing the pricing and remaining aware of the fees charged by Alienation Emu.
The Services will be subject to monthly subscription fees ("Paid Services") once you have completed your free trial period or have exceeded the free subscriber limit, even if you manually remove names from your subscriber list. The subscriber limits of the free trial period are subject to change at any time at The Company's discretion. You will be notified via email of the completion or termination of your free trial period (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for Paid Services. Access to the Services will be disabled until payment is received. Paid Services are billed monthly or pre-paid, in advance, according to the Fee Schedule provided to you by Alienation Emu. The Fee Schedule, including subscriber levels and prices, is subject to change at any time at Alienation Emu's discretion. Amounts paid for the services are not refundable. The monthly fee is due in advance upon commencement of the Service (the "Monthly Anniversary Date") and monthly in advance thereafter, on the month's "Monthly Anniversary Date". On each Monthly Anniversary Date, Users are charged the monthly fee. In the event that the User fails to pay for Services, in accordance with the Fee Schedule, The Company reserves the right to suspend or terminate access to the User's account and all related data and remove all the User data permanently from their servers.
Payment for Services will be made by a valid credit card accepted by The Company. If you have previously provided your credit card for payment, you hereby authorise The Company to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial. If The Company is for any reason unable to effect automatic payment via your credit card, you will be notified via email and your account will be disabled until payment is received.
4. Security
The User is responsible for maintaining confidentiality of its username and password. Furthermore, the User is entirely responsible for any and all activities that occur under its username and password. The User is to immediately notify Alienation Emu of any unauthorised use of the account or any breach of security. The User may change their password at any time by following instructions in Emu. The User hereby authorise Alienation Emu to rely on any data, notice, instruction or request furnished by the User to Alienation Emu, or that Alienation Emu reasonably believes to have been furnished by the User. The Company is not responsible for fraud of participants or of other users of the Users account.
5. Modifications to the Services
The Company reserves the right, as reasonably necessary or convenient for The Company's own purposes or to improve the quality of the Services, to change rules of operation of the Services, accessibility periods of the Services, Customer identification procedures, types of equipment utilised by The Company, system interfaces, operating and other system and network software, utilities, and database software, and to implement enhancements or updates to the Services.
Upon registration and payment of appropriate fees, The Company for the specified period from the date of registration of the Services will make available to the User technical support in the manner and under the guidelines set forth in the Agreement, which may be modified from time to time by The Company at its discretion without notice. The Company may, from time to time, revise or update the Service. In so doing, The Company incurs no obligation to furnish such revision or updates to the User. Updates and further support terms are available to the User on the same basis as The Company makes them available to its other Users at then current prices.
As part of evolutionary development, The Company may, at its sole discretion, provide new releases of the Services to Users with current Agreements. The Company reserves the right to set new fees for new functionality that might be offered to the User as a part of such new releases of the Service.
The Company reserves the right to modify or discontinue the Services, temporarily or permanently, with or without notice to the User and The Company is not obligated to support or update the Services. The Company will not be liable to the User or any third party in the event that The Company exercises its rights to modify or discontinue the Services.
6. Restrictions and Responsibilities
The User represents, warrants, covenants that use of the Services will only be in compliance with this Agreement and all applicable laws.
With regard to email campaigns, the User specifically agrees not to use the Services to:
- Publish, post, distribute, disseminate, advertise or link to any: (i) content, site, topic, name, material or information which is inappropriate, profane, defamatory, libellous, slanderous, infringing, obscene, indecent, or which contains nudity or adult content; (ii) software, content or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless You own, or control such rights or have received all necessary consents for Your publication, distribution, or linking of such software and other materials; (iii) software, content or other material that contains viruses, worms, corrupted files, cracks or that may or are intended to damage the operation of or render inoperable another's computer, hardware, software, security measures or system or other programs written to defeat the security measures of any computer, system or programs; (iv) software, content, other material or Web site that constitutes "hate speech", whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group;
- Sell, offer to sell, distribute, promote, facilitate, disseminate or link to any sites for marketing, sales, promotion, facilitation or distribution of: firearms; explosives; ammunition; illegal gambling (including gambling in connection with sporting events); food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants; illicit drugs, pharmaceuticals and controlled substances; counterfeit, pirated or stolen goods; any goods or services that infringe or otherwise violate a third party's rights including copyright, patent, trademark, or rights of publicity or privacy; goods that are considered indecent, obscene or pornographic; registered or unregistered securities; goods or services that You cannot legally sell; goods which are misrepresented or which do not in fact exist; fraudulent goods; goods or activities that if sold via any Alienation Emu services or Your Web site would cause The Company to violate any law, statute or regulation; or any other illegal activity;
- Harvest or otherwise collect information about third parties, including e-mail addresses, without the express consent of such third parties;
- Violate any applicable government laws or regulations.
- Defame, libel, slander, impersonate, abuse, harass, threaten, invade the privacy of or otherwise violate or infringe the legal rights (including the rights of privacy and publicity) of any other person;
- Conduct, promote or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorised advertising, promotional materials, unsolicited e-mail (including "spamming") or multi-level or illegal marketing campaigns;
You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless The Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. In addition, you acknowledge and agree that The Company has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/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. Although The Company has no obligation to monitor the content provided by you or your use of the Services, The Company may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
Every email message sent in connection with the Services must contain an "unsubscribe" link that allows visitors to remove themselves from your mailing list. You acknowledge and agree that you will not remove, disable or attempt to remove or disable this link. You agree to only import permission-based lists. If you have used the Emu "Double Opt-In" feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails through Alienation Emu to such recipient. You cannot mail to distribution lists, newsgroups, or spam email addresses. You cannot copy an Alienation Emu template and use the design for purposes other than sending emails from Alienation Emu. The Company, at its own discretion, may immediately disable your access without refund to the Services if The Company believes in its sole discretion that you have violated any of the restrictions listed above.
For every email message sent in connection with the Services, you acknowledge and agree that the Services may automatically add an identifying footer stating "Powered by Emu" or a similar message. You agree to cooperate with and provide reasonable assistance to The Company in promoting and advertising the Services.
You will adopt and maintain the email Privacy Policy, which may be modified by The Company from time to time.
Our license agreement gives us the right to publish the names of any customer who has been terminated because of spam complaints. We share this information with other permission-based providers to reduce the probability that the abuser will simply take their business to another provider and get past their controls.
Anyone found in breach of these restrictions will find their account terminated immediately without warning and without refund of any monies paid.
7. Proprietary Rights
The Company retains sole rights and ownership of all code, text and graphics used in the Service (including goodwill). Should agreement be terminated by either party the User will own full rights to their own list data held in the Emu database which can be transferred to the User at no penalty, provided that there are no outstanding sums of money owed to The Company.
The User guarantees that any element of text, graphics, photos, designs, trademarks, or other artwork stored or transmitted by the User, are owned by the User, or that the User has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend The Company from any claim or suit arising from the use of such elements by the User.
The Company does not claim ownership of the materials the User provides to The Company or that the User inputs in connection with the Users use of the Services.
You acknowledge and agree that the Services and the Alienation Emu company names and logos and all related product and service names, design marks and slogans, are the property of The Company or its affiliates or suppliers (collectively, the "Marks"). You are not authorised to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of The Company. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in The Company or its third party suppliers, as the case may be.
8. Termination
You may terminate this Agreement at any time by sending an email message to info@alienationdesign.co.uk or by sending written notice to Alienation Design, The Pentagon, Washington Street, Glasgow G3 8AZ. There are no refunds for any fees paid.
The Company may terminate this Agreement or the Services at any time with or without cause, and with or without notice. The Company shall have no liability to you or any third party because of such termination.
The Company will delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
In the event that The Company terminates the Agreement, no Termination Fees are due.
The termination of the Agreement by either party will not affect the User's obligation to pay the charges incurred for services consumed and any fees due and payable, under the termination clause of this contract. User will pay any outstanding fees under any Plans due to Alienation Emu by credit card immediately upon termination by the User.
9. Modification of Terms and Conditions
The Company may, at any time and at its sole discretion, modify the terms and conditions of this Agreement. Any such modifications will be made available online and will be effective immediately upon posting to Alienation Emu's website. User agrees to assume responsibility for periodically reviewing this Agreement. By continuing to use the Service, following the initial posting date of modifications made by The Company, User agrees to be bound by the Agreement as amended. User may terminate this agreement in accordance with Section 8.
10. Copyright
All contents of the Emu Service are the copyright of The Company © 2006
11. Disclaimer of Warranties
The Company does not warrant that the functions contained in the Services will be uninterrupted or error-free. Whilst The Company will endeavour to ensure the Service has undergone full testing, in no event will The Company be liable to the User or any third party for any damages, including, but not limited to service interruptions caused by Acts of God or any other circumstances beyond our control, any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the Service, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, your or site visitor's computer or Internet software, even if The Company has been advised of the possibility of such damages.
At The Company's request, the User agrees to defend, indemnify and to hold harmless The Company, its officers, directors and employees from any claims arising from the User's use of the Services or the User's breach of the Terms of service, including, without limitation, claims of copyright infringement, patent infringement, misappropriation of trade secrets, libel, slander, trade libel, defamation, harassment, invasion of privacy or fraud.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE INFORMATION ARE PROVIDED BY THE COMPANY ON AN "AS IS" BASIS, AND THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, OMISSIONS, COMPLETENESS, TIMELINESS OR DELAYS WITH RESPECT TO THE SERVICE, INFORMATION OR PRODUCTS.
THE COMPANY AND ITS AFFILIATES ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO THE SERVICE, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT OR TORT, WILL BE LIMITED TO THE AGGREGATE AMOUNT OF CHARGES FOR SERVICES PAID BY THE USER TO THE COMPANY WITH RESPECT TO ANY SERVICES DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM(S).
Your sole and exclusive remedy for any failure or non-performance of the Services shall be for The Company to use commercially reasonable efforts to adjust or repair the Services.
12. Miscellaneous
If any provision of the 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.
These terms and conditions represent the complete, final and exclusive agreement between The Company and the User, and supersede and merge all prior oral, written or electronically transmitted agreements, representations and understandings between The Company and the User.
Scots Law will govern this Agreement. If any of the provisions of this Agreement is determined by a court to be void, invalid, unenforceable or illegal, the enforceability of the other provisions of this Agreement will not be affected.