- Scope of Subscription Services. Opensend provides marketing services for its Clients (“Client Services”), including identifying email addresses of persons who have visited a Client website or otherwise expressed interest in goods or services offered by a Client (“Leads”), and sending promotional emails to those Leads.
- Use of Client Lead information. Opensend may provide information to its Clients regarding these Leads (“Lead Information”). Opensend grants Client a nontransferable, non-exclusive license to use the Lead information in connection with the marketing and management functions of its own business and for no other purpose. Client agrees to only use such Lead Information in compliance with all applicable laws, rules, and regulations. Opensend reserves the right to suspend the Client Services (or a portion thereof) without notice in the event the Client’s use of the Lead Information is in violation of this section.
- Payments / Fees. The Client Services are month-to-month with the services renewing on the first of each month. Partial months may be prorated. When signing up for Client Services you may select a tier based on the number of anticipated visitors to your website and the estimated number of marketing emails which may be sent. The tiers will also indicate the overage fees you will incur for emails sent in excess of the stated amount. You are responsible for all such recurring fees and overage amounts. Subscription and membership fees are subject to change at any time at the sole and absolute discretion of Opensend.
- Rejection of Orders. Opensend may reject your order for any reason. Reasons for rejecting an order include: (a) pricing error; (b) rejection of payment; (c) suspected fraudulent activity; or (d) orders connected with a previous credit card dispute.
- Sales Tax. Opensend charges sales tax where required by law. If sales tax is charged, the appropriate charges will be added to your purchase and displayed in your invoice.
- Cancellation. At any time, and without cause, subscription to the Client Services may be terminated by you or Opensend. When you cancel, you are liable all for charges incurred up to and including through the end of your current subscription period, typically the end of the month. Once you cancel a subscription, it will result loss of access to any Lead Information you have not already downloaded by the end of your subscription period. Cancelation requests may take up to 3 business days.
- Cardholder Disputes/Chargebacks. All chargebacks are thoroughly investigated and may prevent you from making future purchases for other products or services. Opensend will prosecute to the fullest extent of the law any fraudulent activities related to any chargebacks or reversals of a valid charge for an order.
- Returns / No Warranties. There are no product or service warranties of any kind. Subscriptions are not eligible to be returned or exchanged.
- Legal Compliance. You agree not to use the Client Services to promote or sell goods or services which are illegal in Delaware, the United States, or in your local jurisdiction. By using the Client Services, you agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your goods and services.
- Cancellation of Listings or Accounts. Opensend reserves the right to terminate any service or to cancel your account at any time.
- WEBSITE AND SERVICE ACCESS
- Account Creation. In order to access some features of the Services, you will have to create an account. You may never use another’s account without the account holder’s permission. When creating your account, you must provide accurate and complete information. Should any of your information change after submitting it to Opensend, you are required to update that information immediately.
- Account Activity. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Opensend immediately of any breach of security or unauthorized use of your account. Although Opensend will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Opensend or others due to such unauthorized use.
- Automated Systems. You agree not to use or launch any automated system, including without limitation, “scrapers,” “robots,” “spiders,” and “offline readers” that access the Services. You agree not to collect or harvest any personally identifiable information, from the Services in violation of any rule, regulation, law, or any improper purpose.
- Third Party Websites. Opensend assumes no responsibility for, the content, privacy policies, or practices of any third-party websites, including its customers. In addition, Opensend will not and cannot censor or edit the content of any third-party site. You expressly relieve Opensend from any and all liability arising from your use of any third-party website.
- Consent to Electronic Service. When you use the Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on our websites. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- YOUR CONTENT
- The Services may permit the submission, hosting, sharing, and/or publishing of text, photographs, audio, videos, or other content submitted by you (“Your Content”). Typically this occurs when you provide materials to us to help promote your business. For example, the Services may allow for promotional emails to be customized with your logo, photographs, and promotional text you supply.
- By posting, submitting or uploading Your Content to any area of the Services, you automatically grant, and you represent and warrant that you have the right to grant, to Opensend an irrevocable, perpetual, non-exclusive, fully paid, sublicensable, transferable, worldwide license to host, use, distribute, modify, run, copy, publicly perform, display, and translate said Your Content and to prepare derivative works of, or incorporate into other works, said Your Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting Your Content the Services, you automatically grant Opensend all rights necessary to use Your Content for providing the Services.
- By submitting Your Content to the Services, you specifically agree to comply with each of the following:
- You will not post or transmit any material that violates or infringes the rights of any other party, including, without limitation, rights of privacy, rights of publicity, copyright, trademark, or other intellectual property rights.
- If your employer has rights to intellectual property you submit, you have received permission from your employer to post or make available the material.
- You have fully complied with any third-party licenses relating to the material you post or transmit and have done all things necessary to successfully pass through to Opensend any required terms.
- You will not submit any material that is false, deceptive, misleading, or deceitful.
- You will not submit any material that is abusive, hateful, racist, bigoted, sexist, harassing, threatening, inflammatory, defamatory, vulgar, obscene, sexually-oriented, profane or is otherwise in violation of any applicable law, rule or regulation.
- You will not submit any material that deceptively impersonates any person or entity.
- You will not submit any software or computer files that contains malware, computer viruses, worms, Trojan horses, rootkits, spyware, adware, and other malicious or unrequested software, computer code, or file.
- You will not submit any content that is intended to promote or commit an illegal act.
Failure to comply with the above rules may lead to you being immediately and permanently banned, with notification to law enforcement and/or your internet service provider.
- You are and shall remain solely responsible for any and all Your Content you submit through the Service. You acknowledge that any information you submit is intended to be public and used in promotional material. Accordingly, you should exercise caution when deciding to submit any information to the Service. Any such disclosures are at your own risk.
- Opensend does not prescreen Your Content submitted and Opensend has no duty to monitor any interactive area of its website. Although we may monitor or review Your Content from time to time, we do not actively monitor the information supplied through your account, and we are not under any obligation to do so. Each user is solely responsible and liable for the contents of his or her content, and we are not responsible in any way for the content or opinions expressed therein. We have the right, but not the obligation, to remove, edit or move, at any time, any material posted, in each case as we deem appropriate. Opensend may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to any submission in any of the Services.
- INTELLECTUAL PROPERTY INFORMATION
- Other than Your Content, all content on the Services, including without limitation, the text, software, scripts, tools, graphics, photos, sounds, music, videos, and interactive features (“Opensend Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Opensend. The Opensend Content and Marks are protected to the maximum extent permitted by intellectual property laws and international treaties. The Services protected by copyright law as a collective work and/or compilation, pursuant to copyrights laws, and international conventions.
- Derivative Works / Redistribution Prohibited. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Opensend.
- Reproduction Prohibited. You further agree not to reproduce, duplicate or copy Opensend Content without the express written consent of Opensend, and agree to abide by any and all copyright and other legal notices displayed on the Services. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Services. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Services.
- Embedded Content / Frames. You may not embed the Services or place the Services within inline links, frames, or iframes.
- WARRANTY DISCLAIMER
- THE SERVICES, INCLUDING ANY Opensend CONTENT, YOUR CONTENT, OR ANY SITE-RELATED SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Opensend HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
- Opensend MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
- Opensend IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, OR ANY OTHER THIRD PARTY AND Opensend WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED HEREIN.
- YOU ACKNOWLEDGE THAT Opensend HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF PRODUCTS AND SERVICES ADVERTISED ON THE SERVICES OR THE TRUTH OR ACCURACY OF YOUR CONTENT OR OTHER THIRD-PARTY CONTENT.
- Opensend, ITS AFFILIATES AND ITS SPONSORS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES AND/OR CONTENT OR INFORMATION CONTAINED WITHIN THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES AND/OR SITE-RELATED SERVICES IS TO STOP USING THE SERVICES.
- UNSOLICITED MATERIAL AND IDEAS
- We are happy to hear from users and welcome feedback regarding the Services. However, if you transmit unsolicited submissions to us through the Services or otherwise, you grant Opensend a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and fully sub-licensable, assignable and transferrable license to use, copy, reproduce, distribute, publish, publicly perform, publicly display, modify, adapt, translate, archive, store, and create derivative works from such submissions, and you understand and agree that such submissions may be adapted, broadcast, changed, copied, disclosed, licensed, performed, posted, published, sold, transmitted, or otherwise used as Opensend sees fit.
- By using the Services and transmitting an unsolicited submission to us, you agree that you are not entitled to any compensation, credit or notice whatsoever with respect to such submission, and that by sending an unsolicited submission you waive the right to make any claim against the Services, Opensend and its affiliated companies, officers, directors or employees relating to our use of such submission, including, without limitation, infringement of proprietary rights, unfair competition, breach of implied contract or breach of confidentiality, even if material or an idea is used that is or may be substantially similar to the idea you sent.
- You agree to defend, indemnify and hold harmless Opensend, its affiliated companies, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
- your use of and access to the Services;
- your customers and potential customers who receive your promotional emails from us.
- your violation of any third party right, including without limitation any copyright, property, or privacy right;
- your violation of any law, rule or regulation of the United States, any state, or any other country;
- any claim that Your Content caused damage to another party.
- any other party’s access and use of the Services with your account.
- DIGITAL MILLENNIUM COPYRIGHT ACT
- Infringement Not Permitted. Opensend does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Opensend will remove any content if properly notified that such content infringes on another’s intellectual property rights. Opensend reserves the right to remove any content without prior notice.
- DMCA Notice. If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Opensend’s designated Copyright Agent to receive notifications of claimed infringement is:
Attn: Copyright Agent
Address: 2126 Glendon Ave
Los Angeles, CA, US
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
- Counter-Notice. If you believe that Your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in Your Content, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Las Vegas, Delaware, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
- Effect of Counternotice. If a counter-notice is received by the Copyright Agent, Opensend may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Opensend’s sole discretion.
- GOVERNING LAW / DISPUTES
- You agree that the Services shall be deemed solely based in the State of Delaware.
- The Services do not give rise to personal jurisdiction over Opensend, either specific or general, in jurisdictions other than Delaware.
- Disputes. Any dispute, claim or controversy arising out of or relating to the Services, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Delaware, before one arbitrator. At the option of the first to commence an arbitration, the arbitration shall be administered either by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, or by the American Arbitration Association pursuant to its Commercial Arbitration Rules. The arbitrator may not award any consequential, indirect, exemplary, special or incidental damages arising from or relating to your use of the Services (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss). Judgment on the Award may be entered in any court having jurisdiction. You and we will each pay one-half of the costs and expenses of such arbitration, and each of the parties will separately pay their counsel fees and expenses. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court in Delaware to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, trademarks, and trade secrets, but not privacy or publicity rights). For any actions brought in court, You and Opensend consent to the sole and exclusive jurisdiction of the courts located in Delaware, including for acts occurring outside of the United States
- Class Action Waiver. You agree that any arbitration shall be conducted in your individual capacity only and not as a class action or other representative action, and you expressly waive your right to file a class action or seek relief on a class basis. YOU AND Opensend AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
- ASSIGNMENT / MODIFICATION