Subject to the terms and conditions of this Agreement, including without limitation your payment of all of the fees due hereunder, HEC Global, Inc. will provide you with access to the Service to be delivered via the Site during the Term (as defined below) of this Agreement. You will need to open an account with HEC Global, Inc. (the "Account") on the Site to access and use the Service. By opening an Account, you may utilize the Service during the Term of this Agreement solely for your internal business purposes in accordance with this Agreement and provided that you're Account has not been terminated in accordance with the terms and conditions of this Agreement. When you open an Account, you will be required to identify and register the users of the Service by name and establish user accounts for each named user to have full access to and use of the Service on your behalf ("Named Users"). Only the Named Users may use the Service and there is no limitation on the number of Named Users or the number of email marketing campaigns. All Users shall at all times abide by the terms and conditions of this Agreement. You and Named Users shall immediately notify HEC Global, Inc. in the event that you or a Named User becomes aware of any violation of the terms and conditions of this Agreement. You are solely responsible at all times for all activity under your Account, including the activity of Named Users who have been added to your Account by you. You and all Named Users are solely responsible for maintaining the security of your Account and shall protect the confidentiality of all Account information, including user names and passwords. You agree to immediately notify HEC Global, Inc. of any unauthorized use of the Service or any other breach of security known or suspected by you or any Named User and you shall immediately de-activate such Account or change the Account's login information.
YOUR MATERIALS AND DATA
You and any Named Users agree to abide by all laws, rules and regulations that are applicable to your and the Named Users' uses of the Service. You are responsible for (i) all activities that occur with respect to your Account; (ii) you and your Named Users use of the Service and compliance with the terms of this Agreement; (iii) all Customer Data and other data uploaded, stored or accessible by You or your Named Users via or on the Site. You and your Named Users will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other laws in connection with the use of the Site, and obtain all legally required consents prior to sending unsolicited emails to potential customers.
You and your Named Users will use the Services for internal business purposes only (for planning, execution and analysis of marketing programs) as contemplated by this Agreement. You and any Named Users may not, and may not permit any third party to, (i) access the Service for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (ii) use it in a way that harms or could reasonably be expected to have a material adverse effect on HEC Global, Inc. or its affiliates, resellers, distributors, service providers and/or suppliers; (iii) use automated scripts to access the Service; (iv) resell, copy, transfer, reproduce, modify, translate, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (v) use the Service in a service bureau or any other manner to provide services for a third party; (vi) circumvent or disable any security or other technological features or measures of the Service; (vii) access data on the Service not intended for you or any Named User or log onto a server or account on the Site that you or any Named User are not authorized to access; (viii) allow any third parties that offer or provide services that at any time are competitive with HEC Global, Inc.' s products and services to use or access the Site; (ix) remove or obscure any product identification, proprietary, copyright or other notices contained on the Site; or (x) create any link or API or other interface to the Site accessible by any other third party or frame or mirror any content contained or accessible from the Site. You are responsible for the content of all communications sent using the Service. You will not use the Service to communicate or upload any message that is libelous, harmful to minors, obscene or constitutes pornography, infringes the intellectual property rights of any third party or is otherwise unlawful or would otherwise give rise to liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law.
OTHER USER OBLIGATIONS
You represent that you and each of your Named Users are at least eighteen (18) years of age or the legal age of majority where you reside and will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Site, including, without limitation, when you provide information via a Site registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, HEC Global, Inc. reserves the right to terminate immediately your access to and use of the Site. You also acknowledge and agree that use of the Internet and access to the Site is solely at your own risk. While HEC Global, Inc. has endeavored to create a secure and reliable Site, you should understand that the confidentiality of any communication or material transmitted to/from the Site over the Internet or other form of global communication network cannot be guaranteed. Accordingly, HEC Global, Inc. is not responsible for the security of any information transmitted to or from the Site. You must make your own determination as to such issues. To use the Site, you cannot be a person barred from using such services under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the Site. By accepting this Agreement, you represent that you understand and agree to the foregoing.
TERM AND TERMINATION
(a) This Agreement shall run for an initial fixed term that shall be one of the following: (i) ninety (90)-day promotional trial period, (ii) an initial thirty (30)-day period for the Service, when subscribed on a monthly basis, or (iii) an initial one-year period for the Service, when subscribed on an annual basis (each individually as applicable, the "Initial Term"). At the expiration of the Initial Term or any renewal thereof, the Term of this Agreement will be automatically renewed and extended for an additional thirty (30)-day period for each monthly subscription and for an additional one-year period for each annual subscription (each a "Renewal Term"). You must notify HEC Global, Inc. in writing that you desire to not renew a Renewal Term at least 10 days prior to the expiration of the Renewal Term. The Initial Term and any and all Renewal Terms shall constitute the "Term" of this Agreement. You are solely responsible for properly terminating your account, or renewing this Agreement at the end of the Term on HEC Global, Inc.'s then prevailing payment terms and prices. This Agreement may only be terminated during the Term in accordance with the terms and conditions of this Agreement.
(b) If either party fails to comply with any of the material terms and conditions of this Agreement, including without limitation the payment of any fees or other reimbursement due and payable to HEC Global, Inc. under this Agreement, the non-defaulting party may terminate this Agreement and any and all license rights upon prior written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied. Either party may terminate this Agreement upon: (i) the institution of insolvency, bankruptcy, or similar proceedings by or against the other party, (ii) any assignment or attempted assignment by the other party for the benefit of creditors, or (iii) any appointment, or application for such appointment, of a receiver for the other party. Termination is not an exclusive remedy for HEC Global, Inc. and HEC Global, Inc. reserves all other available remedies in contract, tort, or negligence, by law or at equity.
(c) You may terminate this Agreement and your Account at any time by notifying HEC Global, Inc. of termination, and if you terminate this Agreement within the first 30 days of the Initial Term, HEC Global, Inc. will refund you any subscription fees already paid by you for the Initial Term. Please note: the registration or sign-up fee initially paid by you is not refundable to you. After the initial 30-day period, if you terminate the Agreement, no refund will be made for any payments already made by you.
(d) Upon termination of this Agreement, you and any Named Users must immediately stop using the Service, return or destroy all documentation, and certify such return or destruction in writing. Termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture of any and all of your content in your Account. All of your content will be stored in the Site's database for a period of 30 days following the termination of your Account (the "Storage Period"). Upon the end of the Storage Period all your content will be permanently deleted from the Site's or third-party host's servers. Once deleted, this information cannot be recovered. If this Agreement is terminated (other than by reason of your breach as provided in Section 6(b)) and provided you have paid HEC Global, Inc. to use the Service, HEC Global, Inc. will make available to you during the Storage Period a file of your content, if you so request at time of termination.
(a) The current price of a ninety-day subscription to the Service is as set forth on the registration or sign-up web page for the Service. You shall pay HEC Global, Inc. for use of the Service as set forth in the applicable order form for the Service. All fees are due and payable in U.S. dollars or the currency of the country that the order form states. Each payment of your subscription fee will grant you access to your Account for the duration of the Term in accordance with the terms and conditions of this Agreement. Except as provided in Section 6(c) above, all fees are non-refundable unless otherwise provided by law. Notwithstanding the foregoing, you will be given a refund of the subscription fees you have paid in advance for the unused portions of the Term if the Service is permanently discontinued by HEC Global, Inc.. HEC Global, Inc. will not change the price payable by you for the Service during the initial Term of this Agreement. The registration or sign-up fee initially paid by you is not refundable to you under any circumstance. If you elect to renew the Service after the initial Term, the then-current prices offered by HEC Global, Inc. for the Service will apply to any such renewal periods. HEC Global, Inc. reserves the right to terminate or suspend access to the Site if you fail to pay any amounts when due.
(b) Payments for the Service shall be made by the payment method you select when you subscribe to the Service. If you choose to have payments automatically charged to an authorized credit card provided by you, you will be prompted to provide financial information, including credit card and other billing information, directly to a secure third party credit card payment processing service to process and charge your subscription fee. The credit card payment processor will not share your financial information with us and we will not store any such information on our servers. By subscribing to the Service and selecting the credit card payment method, you authorize the credit card payment processor to charge you the subscription fee automatically in accordance with this Agreement and any other charges you may incur with the Service. Should you not pay amounts when due, HEC Global, Inc. may also (at its discretion and in addition to other remedies it may have) suspend your and any Named Users' access to the Service.
(c) The fees for the Service exclude all sales, value-added, use, or similar taxes unless expressly stated otherwise. To the maximum extent permitted by law, you shall pay such taxes and charges in full, except for taxes based on HEC Global, Inc.'s net income. To the extent that such taxes and charges are borne by HEC Global, Inc. then such taxes and charges shall be added to the price payable by you to HEC Global, Inc..
(b) By subscribing to the Service, you hereby acknowledge, agree and authorize HEC Global, Inc. to present you by name, logo, URL and description in its database and directory of businesses and users of the Service.
(c) "Confidential Information" means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as "Confidential," or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and confirmed as such in writing within 15 days of the disclosure. Notwithstanding the foregoing, you acknowledge that Confidential Information of HEC Global, Inc. includes the Service and any other proprietary or confidential information provided to you by HEC Global, Inc.. HEC Global, Inc. acknowledges that the Customer Data provided to HEC Global, Inc. by you constitutes your valuable proprietary information and trade secrets. HEC Global, Inc. does not sell, rent or lease Customer Data to third parties. Notwithstanding the foregoing, to the maximum extent permitted by law, HEC Global, Inc. reserves the right to monitor your communications and may disclose your Customer Data, including without limitation contents of communications, if it is necessary to conform to legal requirements or respond to legal process. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
(d) Neither party shall use the other party's Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Except as otherwise expressly permitted by this Agreement, each party shall not disclose the other party's Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to, and solely to the extent required by, the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.
The Site may offer certain tools or services that are available to you via your mobile phone or other mobile device (collectively, "Mobile Services"). Please note that your mobile carrier's normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Site and its Mobile Services shall be in accordance with this TOU.
FEEDBACK AND SUBMISSIONS
HEC Global, Inc. welcomes your feedback and suggestions about the Service or with respect to how to improve the Site. By transmitting any suggestions, information, material, or other content (collectively, "feedback") to HEC Global, Inc., you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to HEC Global, Inc. and enable HEC Global, Inc. to use such feedback. In addition, any feedback received through the Site will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for HEC Global, Inc. to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
HEC Global, Inc., in its sole discretion, may feature and/or post the advertisements of third parties on the Site and/or feature on the Site materials, programs, products, and services provided by third parties. HEC Global, Inc. makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, reliability, or correct sequencing of such third-party materials, programs, products, and services or any other materials, programs, products, and services which such third-party materials, products, and services may access. Your correspondence or any other dealings with third parties found on the Site are solely between you and such third party. Accordingly, HEC Global, Inc. expressly disclaims responsibility and liability for all third-party provided materials, programs, products, and services contained on or accessed through the Site, and you agree that HEC Global, Inc. shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third parties on the Site.
THE INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE ON OR THROUGH THE USE OF THE SERVICES OR THE SITE ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, HEC Global, Inc. MAY MAKE MODIFICATIONS AND/OR CHANGES TO THE SERVICE OR THE SITE OR IN THE PRODUCTS, SOFTWARE, MATERIALS, AND INFORMATION AVAILABLE ON THIS SITE AT ANY TIME AND FOR ANY REASON. HEC Global, Inc. MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE PROGRAMS, SERVICES, PRODUCTS, SOFTWARE, MATERIALS, AND INFORMATION AVAILABLE ON THIS SITE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS (TO THE FULLEST EXTENT OF THE LAW) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. HEC Global, Inc. ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THIS SITE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY MESSAGE, FILE, AND/OR INFORMATION WILL BE STORED, ARCHIVED, OR DOWNLOADED FROM THE SITE IN A MANNER FREE OF VIRUSES OR CONTAMINATION OR OTHER DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
You expressly absolve and release HEC Global, Inc. from any claim of harm resulting from a cause beyond HEC Global, Inc.'s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HEC Global, Inc. BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR THE SITE, WITH THE DELAY OR INABILITY TO USE THIS SITE, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH THIS SITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF HEC Global, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF HEC Global, Inc. FOR ANY REASON WHATSOEVER RELATED TO USE OF THIS SITE SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO HEC Global, Inc. UNDER THIS LICENSE IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE OR $2,500 (US), WHICHEVER IS LESS.
You agree to defend, indemnify, and hold harmless HEC Global, Inc. and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys' fees and litigation expenses) directly or indirectly relating to or arising from (i) any breach by you or a Named User of this TOU, or (ii) any payment dispute with a third party provider arising from a purchase or incurrence of fees made by you or a Named User.
This TOU has been made in and will be construed and enforced in accordance with the laws of the State of California as applied to agreements entered into and completely performed in the State of California. You agree to the personal jurisdiction by and venue in the state and federal courts in the State of California and waive any objection to such jurisdiction or venue. Any claim you might have against HEC Global, Inc. must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. HEC Global, Inc. makes no representation that the Site is appropriate or available for use in other locations, and access to the Site from states, territories, or nations where any aspect of the Site is illegal is prohibited. You access the Site on your own volition and are responsible for compliance with all applicable local laws with respect to your access and use of the Site. A printed version of this TOU and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this TOU to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Please contact HEC Global, Inc. if you wish to receive a printed copy of this TOU. In any legal proceeding brought by HEC Global, Inc., HEC Global, Inc. shall have the right to seek and be awarded all reasonable attorneys' fees and costs in addition to any other relief, at law or in equity, to which HEC Global, Inc. may be entitled.
You acknowledge that any breach, threatened or actual, of this TOU, including, without limitation, with respect to unauthorized use of HEC Global, Inc. proprietary assets, will cause irreparable injury to HEC Global, Inc., such injury would not be quantifiable in monetary damages, and HEC Global, Inc. would not have an adequate remedy at law. You therefore agree that HEC Global, Inc. shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this TOU. Accordingly, you hereby waive any requirement that HEC Global, Inc. post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to HEC Global, Inc. to enforce any provision of this TOU.
WAIVER & SEVERABILITY
Failure to insist on strict performance of any of the terms and conditions of this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by HEC Global, Inc. of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this TOU is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of this TOU shall continue in effect.
You are responsible for obtaining and maintaining the computer equipment necessary to access and use the Service at the Site and for any network provider charges associated with connecting to the Internet to use the Service. We may audit your use of the Service to assess whether your use of the Service is in accordance with the terms of this Agreement. You acknowledge that the Service is designed with capabilities for you and your Users to access the Service without regard to geographic location and to transfer or move your data. You are solely responsible for the authorization and management of Accounts as well as the export control and geographic transfer of your data.
If you (i) have questions or comments regarding the Site, (ii) are interested in obtaining more information concerning HEC Global, Inc. and its programs or services, (iii) want permission to use any HEC Global, Inc. content, or (iv) are aware of or wish to report misuse of the Site or HEC Global, Inc. materials by any person or entity, please contact HEC Global, Inc. at HEC International, LLC, Attn: Client Support, 1 Park Plaza, Suite 800, Irvine, CA 92614.