TERMS AND CONDITIONS OF SERVICE
Through its THOUGHT REACH platform, THOUGHT REACH, LLC (“THOUGHT REACH “) provides web site operators a variety of tools and resources to store contacts, collect information from contacts via forms and surveys and to create, launch, and manage online marketing campaigns (the “Services”).
The following are the terms and conditions for use of the Services. By clicking the ‘I accept these terms and conditions’ button on the sign-up page or by logging in to THOUGHT REACH, you accept these terms and conditions.
1. Acknowledgements, Services and Support. Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:
- The Services may not be used for the sending of unsolicited email (sometimes called “spam”).
- The Services may only be used for lawful purposes.
- Your use of the Services will be subject to monthly subscription fees (“Paid Services”) once you have completed your free trial period or have exceeded the free contact limit.
- THOUGHT REACH will not use your customer list/subscriber list or any other customer information for any other purposes than those intended with the Service.
- You agree to import, access or otherwise use only permission-based lists in connection with your use of the Services.
- Every email message sent in connection with the Services must contain the THOUGHT REACH “unsubscribe” link that allows subscribers to remove themselves from your mailing list.
- You agree to process any other unsubscribe requests within a 10 day timeframe.
1.2 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 you do not qualify, you are not permitted to use the Services.
1.3 Some parts of the Services will be subject to monthly subscription fees (“Paid Services”). In that case, payment for the Services is billed in advance of the month of service according to the Fee Schedule provided to you by THOUGHT REACH. The Fee Schedule, including subscriber levels and prices, are subject to change at any time.
For users who use our email system under the “Block purchasing” method, the Service availability will be subject to whether there are any block send amounts left in your account. A “Send” is defined as a one attempt to deliver one message to one recipient. This includes but is not limited to soft bounced messages and test messages. Once a block runs out, you must purchase more before you can continue using the service. Fees for Block purchases are billed at the time they are ordered. Amounts paid for the Services, including monthly payments or block purchases, are not refundable except as may be otherwise agreed by THOUGHT REACH in writing.
Invoices are due on receipt. Any payments not made 30 days after the due date shall accrue interest from the date due until the date paid at one and a half percent (1.5%) per month, or, if less, the maximum per annum rate permitted by law.
1.4 You must complete the signup form in order to use the Services. You agree that all information provided by you in connection with the registration and sign-up process will be true, accurate, current, and complete. As part of the registration process, you will identify a username and password for your THOUGHT REACH 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. THOUGHT REACH reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
1.5 In the case of the Services, you will be billed monthly. If the monthly pre-payment subscription payment option is selected, you hereby authorize THOUGHT REACH to charge your credit card for such amounts on a monthly basis; generally on the first day of each month. Fees are payable in US dollars. If THOUGHT REACH is for any reason unable to receive an automatic payment via your credit card, you will be notified via email and your THOUGHT REACH account may be disabled and/or the your ability to use the Services suspended, until payment is received. Monthly pricing will vary based upon subscriber count; you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by THOUGHT REACH .
1.6 You acknowledge that from time to time email delivery of email messages may be blocked or prevented at the destination mail servers sent through THOUGHT REACH. You acknowledge and agree that you are responsible for paying Fees for all email messages sent through THOUGHT REACH, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by any third party. You are responsible for monitoring, correcting and updating the email addresses to which messages are sent through your THOUGHT REACH account.
2. Restrictions and Responsibilities
2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. 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 Services or any software, documentation, or data related to the Services or the THOUGHT REACH software (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business purposes only (civic or charitable) and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
2.2 You acknowledge and agree that the Software and the THOUGHT REACH company names and logos and all related product and service names, design marks and slogans, are the property of THOUGHT REACH or its affiliates or suppliers (collectively, the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of THOUGHT REACH . 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, except as explicitly granted herein. All ownership rights remain in THOUGHT REACH or its third party suppliers, as the case may be.
2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). 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 THOUGHT REACH against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ 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. Although THOUGHT REACH has no obligation to monitor the content provided by you or your use of the Services, THOUGHT REACH 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.
2.4 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 such link. You agree to only import permission-based lists (note: purchased lists may not be used, please contact THOUGHT REACH if you have questions). You cannot mail to distribution lists (without permission), newsgroups, or spam email addresses. You cannot copy any Software template and use the design for purposes other than sending emails using the Services. THOUGHT REACH, at its own discretion, may immediately disable your access to the Services without refund if THOUGHT REACH believes in its sole discretion that you have violated any of the restrictions listed above.
2.5 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in any jurisdiction or your local area is prohibited. This may include laws prohibiting the transmission or storage of material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws.
2.6 If enabling ClickTale or other 3rd party analytics tracking, you agree not to tag URLs within messages with personally indentifiable information.
2.7 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 THOUGHT REACH” or a similar message unless you are paying to have this footer removed. You agree to cooperate with and provide reasonable assistance to THOUGHT REACH in promoting and advertising the Services.
2.8 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to THOUGHT REACH . THOUGHT REACH may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Services, or communicate separately with you. If you subscribed to the Services as a result of solicitation by a marketing partner of THOUGHT REACH , THOUGHT REACH may share your information with the marketing partner. THOUGHT REACH will not provide your personal information to companies without your permission, and THOUGHT REACH will not permit the companies that get such information to sell and redistribute it without your prior consent.
2.9 THOUGHT REACH will not use your customer list or any other customer information for any purposes other than those intended with the Services. Your customer information will not be shared with any other parties. In addition, THOUGHT REACH will not use your customer information for the purpose of sending unsolicited commercial e-mail. You are encouraged to maintain your own copy of your customer list and upon termination of this Agreement, THOUGHT REACH will have the right to delete or destroy such customer list and will not be obligated to return or provide a copy of such list to you unless otherwise agreed by THOUGHT REACH in writing.
3.1 In the case of a custom quote, your ability to terminate this agreement is subject to the termination dates outlined in the custom quote. If not otherwise specified, you may terminate this Agreement at any time by contacting us. In all events, all fees paid to use the Services are nonrefundable in the event you terminate your use of the Services.
3.2 THOUGHT REACH may terminate this Agreement or the Services at any time with or without cause, and with or without notice. THOUGHT REACH shall have no liability to you or any third party because of such termination.
3.3 THOUGHT REACH will delete any of your archived data within thirty (90) days after the date of termination of this Agreement. 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.
3.4 Subscription cancellations can be processed by contacting us. Subscription cancellations must be submitted 5 business days prior to the end of the subscription term.
4. Warranty Disclaimer; Remedies USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. THOUGHT REACH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THOUGHT REACH DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND THOUGHT REACH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SERVICES SHALL BE FOR THOUGHT REACH TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SERVICES.
5. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL THOUGHT REACH OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “THOUGHT REACH “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF THOUGHT REACH SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, THOUGHT REACH IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF THOUGHT REACH TO YOU WILL BE LIMITED TO THE MOST RECENT MONTHLY AMOUNT YOU PAID FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
6. Export of Services or Technical Data
You may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
7. Prohibited Content and Commerce Section
THOUGHT REACH prohibits the use of the Services by any person or entity that engages in any of the following:
Provides, sells or offers to sell the following products or content (or services related to the same): pornography or illicitly pornographic sexual products; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons
Displays material that exploits children, or otherwise exploits children under 18 years of age
Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online pharmacies, pharmaceutical products, nutritional supplements, herbal supplements, vitamin supplements, work at home businesses, credit or finance management, mortgage and debt relief offers.
Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content
Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in case of a minor)
Sells or promotes any products or services that are unlawful in the location at which the content is posted or received
Introduces viruses, worms, harmful code and/or Trojan horses on the Internet
Markets or promotes any form of online gambling
Promotes, solicits or participates in pyramid schemes or multi-level marketing (MLM) businesses
Engages in any libelous, defamatory, scandalous, threatening, harassing activity
Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence
Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner
THOUGHT REACH reserves the right to terminate this Agreement or prohibit the use of the Services by any person or entity if THOUGHT REACH, believes in its sole discretion, that use of the Services by such person or entity may violate any federal, state or local, law, rule or regulation or the terms of this Agreement.
8.1 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.
8.2 THOUGHT REACH and you agree that the 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 the 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.
8.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind THOUGHT REACH in any respect whatsoever.
8.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
8.5 This Agreement shall be construed and interpreted in accordance with the laws of the State of North Carolina applicable to agreements made and to be performed in said State, without regard to choice of law provisions. Any dispute or claim arising out of, or in connection with, this Agreement will be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. § 1-567.1 et seq. (the “Uniform Arbitration Act”) and then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator will apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, the arbitrator will have the authority to award the prevailing party its costs and reasonable attorneys’ fees. In the event that the above arbitration provision is held invalid or unenforceable, then: (i) any dispute with respect to this Agreement will be brought and heard either in the North Carolina state courts located in Wake County, North Carolina, or the federal district court for the Eastern District of North Carolina located in Raleigh, North Carolina; and (ii) the parties to this Agreement each consent to the in personam jurisdiction and venue of such courts.