This Agreement ("Agreement") contains the complete terms and conditions that apply to your use of the NetPotential Email Marketing Services (the "Services"). As used in this Agreement, "NetPotential ", "we", "us", or "our" refers to NetPotential Ltd. 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 subject to your acceptance without modification of this Agreement. Your use of the Services constitutes your acceptance to this Agreement.
(a) Modifications of Terms and Conditions
We may modify any of the provisions of this Agreement by posting a change notice or a new agreement on our Website (currently located at www.netpotential.co.nz). Your continued use of the Services after any modification constitutes your acceptance of such modification.
(b) Limitations On Use
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:
- Unlawful, harassing, libellous, tortuous, abusive, threatening, or obscene communications of any kind;
- Materials that infringe or violate any third party's copyright, trademark, trade secret, privacy or other proprietary right, or that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation;
- Objectionable materials, including content that contains blatant bigotry, racism, or hatred, or that promotes illegal activities or physical harm against anyone;
- Spam, chain letters, junk mail or any other type of unsolicited mass e-mail to people or entities who have not agreed to be part of such mailings;
- Viruses or other harmful, disruptive or destructive files;
- Content containing nudity or pornographic material of any kind to people under age 18, or to anyone on lists that are not limited to people age 18 or older.
You further agree that: (a) you will not disrupt or interfere with another user's use or enjoyment of the Services; (b) 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) you will not attempt to obtain unauthorised access to Services, or to private lists on the Services; (d) you are solely responsible for your actions relating to the Services, and for any communications transmitted under your account; (e) you will not forge header or address information or otherwise impersonate another or create a false identity; (f) 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; (h) you will comply with all applicable laws and regulations, including those related to privacy and data collection; (i) we may 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 above.
(c) Term of the Agreement
The term of this Agreement will begin on your first use of the Services and will end when terminated by either you or us as described below. We may terminate this Agreement at any time, with or without cause, and with or without notice. If you would like to terminate this Agreement, you will need to send notice of termination via email to NetPotential. Your termination of the Agreement will be effective on the last day of the month in which we received such notification.
(d) Email Marketing Communication
We may communicate with you via email, receipt of which by you is considered by NetPotential essential to our provision of the Service. You may unsubscribe from such communication at any time.
(e) Disclosure of Information
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 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.
(f) Proprietary Rights
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 possible that some addresses you supply us may already be on lists that we own and 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.
(g) Disclaimer of Warranties
The Services are provided on an "as is" and "as available" basis. your use of the Services is at your sole risk. To the fullest extent permissible pursuant to applicable law, we disclaim all warranties of any kind, whether express or implied, including 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 will create any warranty not expressly set out in this Agreement. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.
(h) Limitations of Liability
under no circumstances, including, negligence, will NetPotential 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 damages for loss of profits, use, data or other intangibles, even if we have been advised of the possibility of such damages. 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.
Without limiting 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.
(i) Indemnification
You agree to indemnify NetPotential, its parents, subsidiaries, affiliates, officers, directors, employees, agents, and suppliers, and their respective affiliates, officers, directors, employees, and agents, against any claim, action, demand, or damage, including reasonable attorney's fees, made by any third party related to your use of the Services or your violation of this Agreement, including 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 assume the exclusive defence and control of any matter subject to indemnification by you. The assumption of such defence or control by us, however, will not excuse any of your indemnity obligations.
(j) Governing law
This Agreement is governed by the laws of New Zealand and you agree to submit to the exclusive jurisdiction of the courts of New Zealand.