PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING ANY OF THE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THESE SERVICES.
The following are the terms and conditions for access to and use of these services. By checking 'I Agree' on the sign-up page, this page, or by using any of these services, you, the subscriber to the services, are acknowledging that you have accepted these terms and conditions (also referred to as this "Agreement").
Once you have completed your free evaluation period (if provided), you will be subject to monthly subscription fees in accordance with the ContentMX, LLC fee schedule (the "Fee Schedule") or as specified in a Service Order. You may be asked to provide a valid credit card and we will charge your credit card, monthly in advance, for your use of the Services (beginning at the end of your free evaluation period, if provided). If ContentMX, LLC is for any reason unable to effect payment via your credit card, ContentMX, LLC will attempt to notify you via email and your access to the Service may be disabled until payment is received. Amounts paid for the Services are not refundable. Until your subscription to the Services is terminated, you acknowledge and understand that ContentMX, LLC will continue to charge you for the Services regardless of whether the Services are used or not. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by ContentMX, LLC. All fees are subject to change at any time in ContentMX, LLC's sole discretion; provided, however, that ContentMX, LLC will use reasonable efforts to notify you via email prior to the effectiveness of any change to its Fee Schedule.
2. Access to Internet; Equipment
In order to use the Services, you are responsible at your own expense to access the Internet, either directly or through devices that access web-based content. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device. You shall not attempt to access any other of ContentMX, LLC's systems, programs or data that are not made available for public use.
3. License Grant; Restrictions
Subject to these terms and conditions and your payment of all applicable fees, ContentMX, LLC hereby grants to you (i) a non-exclusive, non-transferable, revocable license to allow up to one User to access the website for each Service to which you have subscribed, solely in order to configure such Service for your internal business purposes and (ii) a non-exclusive, non-transferable, revocable license to distribute any Content (as defined below in Section 5) made available to you for inclusion in communications that form part of the Services to your customers and other designated recipients, pursuant to the automatic content distribution system that forms part of the Services. A "User" shall mean you unless you are a corporate or similar entity, in which case a User shall mean any of your employees, consultants or independent contractors. This license is restricted to use by you and your Users and does not include the right to use any ContentMX, LLC Service on behalf of any third party or the right to permit any non-User to access or use any ContentMX, LLC Service. All rights not expressly granted to you are reserved by ContentMX, LLC and its licensors. There are no implied rights.
This is an Agreement for services and access to the ContentMX, LLC Services only, and you are not granted a license to any software by this Agreement. Unauthorized use, resale or commercial exploitation of any of the ContentMX, LLC Services in any way is expressly prohibited. Without ContentMX, LLC's express prior written consent in each instance, you shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any of the ContentMX, LLC Services or any software or data related to the ContentMX, LLC Services or used to make the ContentMX, LLC Services available to you. Except as expressly permitted in this Agreement, you shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign any of the ContentMX, LLC Services, any content forming part of any ContentMX, LLC Services (including any ContentMX, LLC Content), or your rights to use the ContentMX, LLC Services to any third-party. You shall take all measures necessary to ensure compliance by all of your Users authorized to access the ContentMX, LLC Services with these terms and conditions and shall be liable for any breach by your Users of such terms and conditions. You are responsible for maintaining the security of your account, passwords and files.
4. Compliance with Law; Further Covenants
You agree that you shall use the Services solely in accordance with these terms and conditions, the federal CAN-SPAM Act of 2003, and all other applicable laws (including but not limited to policies and laws related to spamming and privacy). ContentMX, LLC may, in its sole discretion, block any messages, remove any of your content or prohibit any use of the Services that ContentMX, LLC believes may be in violation of the foregoing.
5. Ownership; ContentMX, LLC Content. You acknowledge and agree that all right, title and interest in and to the ContentMX, LLC Services and any ContentMX, LLC Content and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain ContentMX, LLC's or its licensors', and this Agreement in no way conveys any right or interest in the ContentMX, LLC Services or the ContentMX, LLC Content other than a limited license to use them in accordance herewith. The ContentMX, LLC name, the ContentMX, LLC logos, and the product names associated with the Services, including, but not limited to "Butterfly Publisher", "Butterfly Pages", and "140Mail" are trademarks of ContentMX, LLC or third parties, and no right or license is granted to use them. You shall not remove any ContentMX, LLC trademark or logo from any ContentMX, LLC Service. For purposes of this Agreement, "ContentMX, LLC Content" shall mean any written material, images, videos, and other content made available to you by ContentMX, LLC as part of the ContentMX, LLC Services for use in messaging sent via the ContentMX, LLC Services. ContentMX, LLC reserves the right, in its sole and absolute discretion, to include ContentMX, LLC and third party advertising and promotional items and links in the messages.
6. Data Collection.
In connection with the ContentMX, LLC Services, you acknowledge and agree that ContentMX, LLC will collect and maintain certain information related to your customers and others you designate to receive your messages ("Data"), including, without limitation, (i) your customers' email addresses, (ii) any information you provide to us in registering for use of any of the ContentMX, LLC Services and (iii) information related to your content (including, without limitation, item identifiers, descriptions, images and video).
ContentMX, LLC shall not publicly distribute or disclose any such Data unless aggregated with other data and in a form and manner that does not associate such Data with you or a particular customer of yours.
7. Email Policy.
In connection with your use of the Service, you shall at all times comply with the ContentMX, LLC Email Policy, which may be modified by ContentMX, LLC from time to time, in its sole discretion.
ContentMX, LLC may terminate this Agreement and your use of the ContentMX, LLC Services or disable your account, in each case at any time with or without cause, and with or without notice. ContentMX, LLC shall have no liability to you as a result of such termination or disablement. You may terminate this Agreement or your use of the ContentMX, LLC Services at any time by sending a termination notice to ContentMX, LLC. There are no refunds for any fees paid. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability. ContentMX, LLC reserves the right in its sole and absolute discretion to change, suspend or discontinue - temporarily or permanently - some or all of the ContentMX, LLC Services, at any time without notice. ContentMX, LLC will not be liable to you for any such modification, suspension or discontinuance of the ContentMX, LLC Services.
11. Amendments to Prices and Agreement.
ContentMX, LLC reserves the right to modify the terms and conditions set forth in this Agreement, the prices for any ContentMX, LLC Services, at any time in its discretion and to offer additional service offerings with or without charge. ContentMX, LLC will use its reasonable efforts to notify you by email if it has made any changes in the prices or this Agreement, but, whether or not such notification is provided, you are responsible for reviewing the then current ContentMX, LLC publication prices, terms and conditions which shall be set forth on the website for the ContentMX, LLC Services or in a signed service order. If you continue to use the ContentMX, LLC Services after ContentMX, LLC has made any such changes without exercising your termination rights, then you will be deemed to have accepted and agreed to such changes.
12. Warranties; Disclaimer
You represent and warrant that: (i) Customer Content, including without limitation the items and services offered by you pursuant to such content, will not infringe on the copyrights, trademarks, service marks, patents, trade secret, privacy, publicity, or other intellectual property or personal rights held by any third party; (ii) you have all power and authority to enter into this Agreement and have duly and validly authorized this Agreement, which shall be enforceable against you in accordance with its terms, and; (iii) you agree to comply with all federal and state laws, regulations and rules, including without limitation regulations pertaining to online commerce, and consumer privacy rules promulgated by the Federal Trade Commission.
THE CONTENTMX, LLC SERVICES, INCLUDING, WITHOUT LIMITATION, ALL CONTENTMX, LLC CONTENT, ARE PROVIDED TO YOU "AS IS". YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY CONTENTMX, LLC. CONTENTMX, LLC DOES NOT WARRANT THAT YOUR USE OF ANY OF THE CONTENTMX, LLC SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CONTENTMX, LLC SHALL NOT BE LIABLE FOR ANY FAILURE OF THE CONTENTMX, LLC SERVICES ARISING DUE TO FACTORS OUTSIDE CONTENTMX, LLC'S REASONABLE CONTROL.
Your sole and exclusive remedy for any failure or nonperformance of the ContentMX, LLC Services or any error or omission in the ContentMX, LLC Content and ContentMX, LLC's sole remedy shall be for ContentMX, LLC to use commercially reasonable efforts to repair the error or defect in the applicable ContentMX, LLC Service or to correct the ContentMX, LLC Content.
13. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CONTENTMX, LLC OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF CONTENTMX, LLC TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE CONTENTMX, LLC SERVICE IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM. 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 CONTENTMX, LLC HAS SET ITS PRICING IN RELIANCE ON THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
You shall defend, indemnify, and hold ContentMX, LLC harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims against ContentMX, LLC and its employees and affiliates arising from or connected with (i) any claim that Customer Content infringes or misappropriates any third party copyright, patent, trademark, service mark, trade secret, privacy, publicity or other intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by you.
You shall use the ContentMX, LLC Services in compliance with all laws and regulations, including without limitation all export control laws and regulations of the United States, which include the Export Administration Regulations, the International Traffic in Arms Regulations and any embargoes enforced by the Office of Foreign Assets Controls. You shall not export or re-export the ContentMX, LLC Services or any ContentMX, LLC Content in violation of any applicable export control law or regulation.
(a) This Agreement shall be construed in accordance with and governed for all purposes by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of law; (b) this Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral; (c) the parties hereto agree that only the Massachusetts courts, either federal or state, shall have exclusive jurisdiction over this Agreement and any controversies arising out of this Agreement; (d) in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement but this Agreement shall be construed as if such invalid, illegal or other unenforceable provision had never been contained herein; (e) you shall not assign your rights or obligations hereunder without ContentMX, LLC's advance written consent; (f) subject to the foregoing subsection (e), this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns; and (g) no waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion.