This Agreement ("Agreement") contains the complete terms and conditions that apply to your use of the Web Systems Email Marketing Services (the "Services"). As used in this Agreement, "Web Systems", "we", "us", or "our" refers to Tomlin/Nicks Advertising, LLC. and "you" or "your" refers to the person who sends one or more emails using the Services, and performs the administrative functions of the Service. The Services are offered to you conditioned on your acceptance without modification of this Agreement. Your use of the Services constitutes your acceptance to this Agreement.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our Website located at www.tomlinnicks.com or any such successor Website. You are responsible for regularly reviewing these terms and conditions. Continued use of the Services after any modification shall constitute your consent to such modification.
You agree that you have the full authority and right to enter into this Agreement and that you are at least 18 years of age. You also agree that you will not use the Services to transmit, disseminate or upload:
You further agree: (a) that you will not disrupt or interfere with another user's use or enjoyment of the Services; (b) that you will not use or attempt to use another person's or entity's account, service or system without authorisation from the owner, nor will you disrupt or interfere with the security of, or otherwise abuse, the Services, system resources or accounts, or any servers or networks connected to the Services; (c) that you will not attempt to obtain unauthorised access to Services, or to private lists on the Services; (d) that you are solely responsible for your actions in relation to Services, and for any communications transmitted under your account; (e) that you will not forge header or address information or otherwise impersonate another or create a false identity; (f) that you will not systematically extract, collect or harvest, through electronic means or otherwise, any data or data fields, including without limitation, lists, list owner identities, or email addresses, from our Website; (g) that you will not disrupt the normal operations of the Services or cause any substantial change in the usual content or frequency of emails sent using the Services; (j) that you will comply with all applicable local, state, national and international laws and regulations, including without limitation those related to privacy and data collection. You agree that we may in our sole discretion remove any material that appears to violate any of the foregoing, and may immediately limit or terminate your account or access if it appears you have violated any of the provisions as described herein.
The term of this Agreement will begin upon your first use of the Services and will end when terminated by either you or us as described herein. We may terminate this Agreement at any time, with or without cause, and with or without notice. In the event that you would like to terminate this Agreement, you will need to send such notice of termination via email to Tomlin/Nicks Advertising, LLC. Your termination of the Agreement will be effective upon the last day of the month in which we received such notification.
We shall have the right to communicate with you via email, receipt of which by you is considered by Tomlin/Nicks Advertising, LLC essential to our provision of service. You may unsubscribe from such communication at any time.
We will not disclose personally identifiable information about you or your private communications (i.e., content transmitted on private, non-public lists) to third parties, without your permission, unless we believe such disclosure is reasonably necessary to: (1) comply with the law or legal process; (2) protect or defend our rights or property or that of others; (3) enforce this Agreement; (4) respond to claims that the contents of any communications violate the rights of others; or (5) as otherwise provided in the Agreement. From time to time, we will disclose aggregate user demographic data to third parties. We may access your Lists and related communications for technical processing and to address technical problems or service complaints.
We will not sell, trade, rent, lend or give email addresses that you supply us to anyone else for any purpose, nor will we use the addresses you supply us for any purpose other than supplying the Services to you. It is understood that it is possible that some of the addresses you supply us may already be on lists that we own and that we have the right to mail to such addresses.
We do not claim ownership of the materials you provide to us for purposes of using the Services and which were created by you or on your behalf. By transmitting such materials for distribution to your Lists, you grant us a worldwide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish such materials solely for the purposes of providing the Services to you.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT MAKE ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL WEB SYSTEMS OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICES OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE SERVICES, OR RESULTING FROM UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE TO DELIVER, HOLD OR STORE EMAIL TRANSMITTED THROUGH THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.
Without limiting any of the foregoing, we are not responsible for any of your materials and data residing on our network hardware. You are responsible for backing-up your materials and data that may reside on our network hardware, whether or not such materials and data are produced through the use of the Services. It is your responsibility to take the necessary steps to ensure your primary means of business is maintained. In no event will we be liable to you for more than the actual dollar amount that you paid for the use of the Services during the term of this Agreement.
You agree to indemnify, defend and hold harmless Tomlin/Nicks Advertising, LLC, its parents, subsidiaries, affiliates, officers, directors, employees, agents, and suppliers, and their respective affiliates, officers, directors, employees, and agents, from any claim, action, demand, or damage, including reasonable attorney's fees, made by any third party arising out of or related to your use of the Services or your violation of this Agreement, including without limitation the infringement by you or any other user of your account, of any intellectual property or other right of any person or entity. We may, at our sole discretion, assume the exclusive defence and control of any matter subject to indemnification by you. The assumption of such defence or control by us, however, shall not excuse any of your indemnity obligations.