Terms & Conditions

Our terms and conditions are designed to encourage better service and compliance with anti-spam regulations. By using SEMSblast as a permission-based email marketing tool, you are agreeing to the following conditions, and as such, we recommend familiarizing yourself with the following documents.

 

Trial Terms

You may use the services for free through a limited time trial account. Trial accounts are limited to those numbers of subscribers and email messages and for that period of time as are set forth on the landing page through which you subscribe to use the services. Every message is subject to manual message review during the trial period. Messages may be delayed as a result. You may upgrade your account at any time. If you have not upgraded your account by the end of your trial period, you may log in and manage your lists, but you will not be able to send messages. SEMSblast has a no tolerance spam policy that we take very seriously. Your account will be terminated if you send unsolicited email messages.

 

Anti-Spam

SEMSblast only supports permission-based emails and has a no tolerance spam policy that we take very seriously. Your account will be terminated if you send unsolicited email messages. Read More

 

Privacy Policy

Our Privacy Policy demonstrates our firm’s commitment to your privacy and the protection of your information. Read More

 

Safe Harbor

SEMSblast complies with the U.S.-EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework, as set forth by the U.S. Department of Commerce, with respect to the personal data it receives from countries in the European Economic Area and Switzerland. We have certified our adherence to these Safe Harbor Principles.

 

 

End User Service Agreement

An End User Service Agreement (EUSA) is a legal contract between SEMSblast and the end user, you, our customer. The EUSA details how the Software as a Service can and cannot be used and any restrictions SEMSblast imposes.

 

Prohibited Content and Commerce

SEMSblast prohibits the use of its software for many types of commercial activities including pornography, hate speech and illegal products or services.

 

Termination Policy

At any time, for any reason, either party may cancel a user’s SEMSblast account. To learn more about our cancellation policies, or how to cancel your account, please read our Cancellation Policy.

 

Affiliate Agreement

SEMSblast is the licensed provider of SEMSblast email marketing and list management software (the “Software”). Affiliate wishes to promote the Software via a landing page pursuant to the terms and conditions set forth herein.

 

Copyright

SEMSblast respects the intellectual property rights of others, and SEMSblast requires its customers and those that visit its website(s) to do the same.

 

End User Services Agreement

PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND SEMSBLAST (“SEMSBLAST” OR “WE”) WITH RESPECT TO YOUR USE OF SEMSBLAST'S SOFTWARE, SERVICES AND APPLICATIONS (THE “SERVICE”). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICE.

1. Services. The Service facilitates your electronic distribution of customer-created content to your lists of subscribers or contacts, each of whom must have consented previously to the receipt of such content (“Recipients”) and may also include certain on-line marketing automation services. While Customer retains SEMSblast to assist with the transmittal of content to its Recipients, Customer acknowledges that SEMSblast does not actually send Customer content to Recipients on Customer’s behalf. The Service is comprised of a web-based technology platform through which such content is delivered once Customer sends such content. Among other things, SEMSblast provides customer support and formatting assistance for the electronic content Customer desires to distribute. In all cases, SEMSblast simply acts as agent for Customer with its authorization. Customer and not SEMSblast is responsible for the content and accuracy of all information submitted for distribution via the Service, even if such content has been reviewed, edited or written by SEMSblast. Customer agrees it will only use the Service for Customer’s own internal business purposes. If Customer does not intend to use the Service for business purposes, Customer must contact us at support@SEMSblast.com.

 

2. Site and Policies. During the Term (as defined below) and subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that SEMSblast may establish and post from time to time on www.SEMSblast.com (the “Site”), including, without limitation, SEMSblast's anti-spam policy, privacy policy and prohibited content and commerce statement, each of which is incorporated herein by reference (collectively, the “Policies”), SEMSblast agrees to use commercially reasonable efforts to provide Customer with the Service. From time to time, SEMSblast may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on the Site, and Customer’s use of the Service thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees that its purchase of the Service is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by SEMSblast with respect to future functionality or features.

 

3. Other Services.
   1. Professional Services. In addition to the Service, Customer may purchase certain premium services ( “Professional Services” or sometimes referred to as SEMSblast Premier), which Professional Services may be customized pursuant to a mutually agreed upon written statement of work provided to Customer upon the earlier of its request or its selection of desired Professional Services (each a “Statement of Work”). The Professional Services are provided by SEMSblast separate and distinct from the Service and are not required for Customer’s use or enjoyment of the Service. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of each of SEMSblast and Customer. Any Professional Services purchased by Customer shall be used by Customer within the term of the applicable Sales Order.

    

   2. Monitoring. This Section 3.B sets forth the terms and conditions governing SEMSblast’ provision and Customer’s use of the media monitoring service provided by SEMSblast or its affiliate(s) (the “Monitoring Service”) and only applies if such service is included on the Sales Order, or is part of a suite of purchased services, in either case, the Monitoring Service shall be considered part of the Service.
      (i) SEMSblast will monitor Customer’s social media feeds. SEMSblast reserves the right, in its sole and absolute discretion, to refuse to undertake any monitoring that SEMSblast reasonably deems improper or unlawful.
      (ii) Customer agrees that content provided to Customer through the use of the Monitoring Service will not be resold, republished or otherwise systematically distributed to third parties in any form, including but not limited to via an intranet, extranet or internet site.
      (iii) Customer acknowledges and agrees that in providing the Service, SEMSblast will supply information prepared or authored by others (“Third Party Content”), and SEMSblast is not responsible for the content of any such Third Party Content. SEMSblast makes no representation or warranty, whether express or implied, regarding the origin, accuracy, correctness, completeness, subject matter, content, or editorial approach of any Third Party Content.
      (iv) Customer acknowledges and agrees that the Third Party Content monitored by SEMSblast may be subject to copyrights owned by third parties. SEMSblast does not imply, represent or warrant, by virtue of supplying information incorporating Third Party Content, that SEMSblast holds or grants any license to use any content. Customer’s use of any content shall be at Customer’s sole risk and expense and usage may be subject to restrictions imposed by one or more third-party copyright owners, and Customer agrees that it shall comply with any such restrictions.
      (v) SEMSblast does not represent or warrant that any specific sources will be monitored. SEMSblast reserves the right to change the sources that it monitors at any time. SEMSblast may need administrative access to Customer’s social media platform in order to provide the Monitoring Service.

    

   3. Landing Pages. This Section 3.C sets forth the terms and conditions governing SEMSblast’ provision and Customer’s use of SEMSblast's landing pages (the “Landing Pages”) and only applies if such service is listed on a Sales Order, or is part of a suite of purchased services, in either case, the Landing Pages shall be considered part of the Service.
      (i) SEMSblast will provide Customer with the ability to build Landing Pages that can be used to support Customer’s marketing campaigns. SEMSblast does not endorse nor accept any responsibility for the content of or Customer’s use of the Landing Pages. SEMSblast makes no representation or warranty, express or implied, regarding the origin, accuracy, licenseability, correctness or completeness of any information Customer obtains through the Landing Pages.
      (ii) Customer grants SEMSblast and its affiliates the non-exclusive right to capture data from Customer’s Landing Pages solely for use in providing the Service. Customer shall inform third parties visiting its Landing Pages of Customer’s collection, use, and monitoring; and shall do so in compliance with all applicable privacy and data collection laws.
      (iii) SEMSblast reserves the right in its reasonable discretion to immediately disable Customer’s Landing Pages if Customer’s bandwidth significantly exceeds the average bandwidth usage of other Customers.

 

4. Free Trial Period. Some of the Services are offered on a free trial basis. In the event Customer elects to use the Service on a trial basis, Customer will not be billed for such use for a period equal to thirty (30) days or, if a different number of days are posted on the landing page through which Customer subscribes to use the Service, that different number of days, beginning on the date on which Customer first subscribes to use the Service and indicates its agreement with the terms and conditions set forth in this Agreement (the “Trial Period”). During the Trial Period, Customer’s Subscriber Limits and Contact Limits may not exceed 2000. Additionally, Customer’s Level Limit may not exceed four (6) times the Subscriber Limits or Contact Limits (i.e., 12,000 emails per month), unless a higher Subscriber Limits, Contact Limits and/or a higher monthly Level Limits are posted on the landing page through which Customer subscribes to use the Services. The Subscriber Limits, Contact Limits, and Level Limits for the Trial Period are subject to change at any time. Once Customer completes its free trial period or exceeds any such limit (even if Customer manually removes names from its Recipient list), whichever occurs first, the Trial Period will terminate. Upon such termination, Customer may purchase a monthly or annual subscription for the Service, and Customer’s access to the Service will be disabled until payment is received. SEMSblast reserves the sole and exclusive right to modify the duration of the Trial Period.

 

5. SEMSblast Free Forever. If Customer subscribes to the Service through a free customer account (“SEMSblast Free Forever”), Customer’s use of the Service will be subject to the terms, conditions and restrictions (including Subscriber Limits) set forth herein and posted on the landing page through which Customer subscribes. If Customer exceeds any such limit (even if Customer manually removes names from its Recipient list), its access to the Service may be disabled. In such event, Customer may purchase a monthly or annual subscription for the Service, and Customer’s access to the Service will be disabled until payment is received. SEMSblast reserves the sole and exclusive right to modify any of these terms, conditions and restrictions. All such modifications shall become effective once posted on the Site. Customer acknowledges and understands that its use of the Service through SEMSblast Free Edition may be limited in terms of functionality, features and support as compared with the Service provided through SEMSblast's standard, paid customer accounts. Customer may upgrade from SEMSblast Free Edition to a standard paid customer account at any time.

 

6. Purchase. Pricing for email distribution is based upon which platform is being used and either (i) the number of Subscribers (“Subscriber Limits”); or (ii) the number of Contacts (“Contact Limits”) that Customer chooses to purchase as indicated on the webpage through which Customer subscribes to the Service or in a negotiated sales order, as the case may be (in either case, the “Sales Order”). Subscriber Limits are based upon the number of email addresses that are subscribed to a Customer’s particular email list in the Service. Contact Limits are based upon the total number of email addresses associated with the Customer in the Service. The Sales Order identifies Customer’s Subscriber Limits or Contact Limits, Level Limits (as defined below), term, subscription fee, payment method and other account information. If the Subscriber Limits or Contact Limits stored in Customer’s account exceeds the applicable level set forth in the Sales Order, Customer’s access to and use of the Service will be disabled until Customer: (i) reduces the number of Subscribers or Contacts stored in Customer’s account; or (ii) upgrades its account to at least equal the number of Subscribers or Contacts stored in its account. Customer may upgrade (but not downgrade) Customer’s Subscriber Limits or Contact Limits at any time during the term of this Agreement. Additionally, Customer will be limited by the total number of emails per month that may be sent “Level Limits”. If Customer requires a sending limit higher than its Level Limit per month, Customer should contact SEMSblast’s support group at support@SEMSblast.com.

 

7. Fees and Payment. In consideration for the Service to be provided by SEMSblast (other than through SEMSblast Free Edition), Customer agrees to pay the monthly subscription fees set forth in the Sales Order (the “Subscription Fees”). Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Service may be blocked or prevented at destination email servers. Customer’s payment obligations continue regardless of whether delivery of email messages is prevented or blocked. In consideration for the Professional Services to be provided by SEMSblast, if any, Customer agrees to pay the fees set forth in the Statement of Work or as otherwise provided to Customer by SEMSblast, (the “Professional Fees,” together with the Subscription Fees, the “Fees”). All Fees are exclusive of taxes, levies, or duties imposed by taxing authorities. Unless collected and remitted by SEMSblast, Customer is responsible for payment of all taxes due to a governmental authority, if any, except for taxes imposed on SEMSblast's net income. Customer shall provide to SEMSblast any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability. Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice; or may be pre-paid in advance; or otherwise may be paid pursuant to the terms set forth in the Sales Order. If Customer is paying for the Services with a credit card, Customer hereby authorizes SEMSblast to charge such credit card for Fees on a regular basis until such time as Customer’s account is terminated. If Customer is paying for the Services by credit card and such credit card is declined, SEMSblast will send Customer notice thereof to Customer’s email address on record. If Customer misses a payment, SEMSblast may notify Customer by phone or mail, but has no obligation to do so. Any payment due and not received by SEMSblast by the due date may be subject, at SEMSblast's sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. In the event Customer fails to make timely payments when due, SEMSblast may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding after ninety (90) days from its receipt of the invoice, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses. From time to time, and at any time, SEMSblast may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.

 

8. Customer’s Recipient Data. In offering the Service, we may collect personal information about Recipients. SEMSblast will not own any data, information or material that Customer submits to SEMSblast in connection with the Service (“Customer Recipient Data”). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Recipient Data, and Customer is responsible for maintaining, securing and storing all Customer Recipient Data in accordance with applicable law. Upon any termination or expiration of this Agreement, Customer’s payment of all unpaid and outstanding Fees, and Customer’s written request received by SEMSblast within thirty (30) days of such expiration or termination, SEMSblast will provide Customer with an electronic file of the Customer Recipient Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, SEMSblast has no obligation to retain the Customer Recipient Data and may delete and destroy such Customer Recipient Data without providing Customer with notice of such deletion. If Customer uses the Service during a Trial Period and fails to convert its account to SEMSblast Free Edition or a standard paid customer account upon the expiration or other termination thereof, SEMSblast has no obligation to retain the Customer Recipient Data after the date of such expiration or termination. If Customer uses the Service through SEMSblast Free Edition and fails to use the Service for at least sixty (60) consecutive days, as of the sixty-first (61st) day after Customer’s last use of the Service, Customer acknowledges and agrees that SEMSblast has no obligation to retain the Customer Recipient Data and may delete and destroy such data without providing Customer with notice of such deletion. SEMSblast will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Recipient Data.

 

9. Customer Information. SEMSblast collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the “Customer Information”). SEMSblast collects such information in order to provide the Service or the Professional Services, as the case may be, and related technical support. If you have provided your Customer Information, SEMSblast may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone. When you activate an SEMSblast account (including during the Trial Period), you expressly consent to receive marketing communications via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods.

 

10. Data Disclosures. Except as otherwise set forth herein, SEMSblast does not disclose, sell or rent Customer Recipient Data or Customer Information (collectively, the “Data”), without Customer’s prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits SEMSblast to disclose the Data to: (i) SEMSblast personnel who access and manage the Data in connection with the Service; (ii) service providers or affiliates for purposes of providing functions or services related to the Service and SEMSblast's customers’ accounts; and (iii) SEMSblast marketing partners through which Customer purchased the Service, if any. Except as otherwise set forth herein, SEMSblast will not provide any Data to any third party without Customer’s authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer’s authorization.

 

11. Passwords. In connection with SEMSblast's provision of the Service, SEMSblast will send to Customer’s email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Service (the “Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify SEMSblast promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer’s negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.

 

12. Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Service, the Professional Services, and in any applications developed, owned or controlled by SEMSblast (as applicable) (the “Software”), and the Service, are and shall remain the sole and exclusive property of SEMSblast. Accordingly, Customer acknowledges that, as between SEMSblast and Customer, SEMSblast owns all right, title and interest in and to the Software and the Service, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Service. Customer acknowledges that the Software contains proprietary information and trade secrets of SEMSblast. Customer will not take any actions inconsistent with SEMSblast's ownership of each of SEMSblast's rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by SEMSblast. If you are using the Service in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. Customer hereby grants to SEMSblast a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license during the term of this Agreement to use, copy, distribute, perform, display and publish Customer’s name, trademarks, logos and trade names solely for the purpose of providing the Service.

 

13. Use of Services. Customer acknowledges and agrees that it will use the Service (and the Professional Services as the case may be) only to access, employ, utilize, or display the Software solely for Customer’s “internal business purposes” by Customer’s employees or by independent contractors hired by Customer. For the avoidance of doubt, the term “internal business purposes,” as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) use the Service (and the Professional Services as the case may be) in any other manner which violates any Policy or any applicable law. Customer agrees to report immediately to iContact, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 13 or in any of the Policies. In the event of any suspected violation of any term, condition or restriction set forth in this Section 13 or in any Policy, or in the event SEMSblast otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, SEMSblast may immediately disable Customer’s access to the Service and suspend its provision thereof. The Service may include commenting or messaging functionality, functionality that allows posting or transmitting content to outward facing, social or public platforms. By doing so, Customer agrees not to post any of the following: (i) content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; (ii) content that violates, or that causes SEMSblast to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction; (iii) content that infringes or violates any intellectual property or proprietary right of any party, or that Customer otherwise does not have the right to make available; (iv) Private or confidential information of any person or entity, any trade secrets or information for which Customer has any obligation of confidentiality, or any material that impersonates any person or entity or misrepresents Customer’s affiliation with any person or entity; (v) Viruses, corrupted data, or other harmful, disruptive, or destructive files or content; (vi) content that violates any terms or conditions, policies, or guidelines of any social media platform or other platform or service to which it is posted; or (vii) content that transmits any bulk unsolicited commercial communications. Customer acknowledges that iContact does not pre-screen or approve content, but that SEMSblast has the right (but not the obligation) in its sole discretion to refuse, delete, or remove any content that is posted using any Services or that is displayed on or through the Services.

 

14. No Tampering. Each email message that is sent using the Service must contain an “unsubscribe” link that allows Recipients to remove themselves from Customer’s mailing list and a link to SEMSblast's Policies. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify either link. Further, each such email message may contain an automatic identifying footer such as “Powered by SEMSblast.” Except as otherwise expressly permitted in writing by SEMSblast, Customer agrees that it will not remove, disable or modify or attempt to remove, disable or modify such footer.

 

15. Confidential Information. Each of SEMSblast and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party’s business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer’s Confidential Information. Nothing set forth herein shall be construed to prohibit SEMSblast from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with its performance of the Services, such as a vendor or affiliate. From time to time, SEMSblast may be required to disclose Customer’s Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by SEMSblast or its legal counsel. In such event, Customer hereby permits SEMSblast to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 15.

 

16. Representations, Warranties and Covenants. Customer represents, warrants and covenants to SEMSblast that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Sales Order and that will be provided it during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Customer Recipient Data, the Service and the Professional Services, including, without limitation, its right to email Recipients, is and will at all times be in accordance with the terms and conditions set forth in this Agreement, the Policies and all applicable laws, rules and regulations, and without infringement or misappropriation of any intellectual property right or other right of a third party; (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services; (vii) it will use the Service in accordance with all applicable laws and regulations; (viii) it has the right, permissions and authority to provide Customer Information and Customer Recipient Data to SEMSblast and (ix) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.

 

17. Third Party Products and Services. From time to time, certain third parties may offer products and services related to the Service (and the Professional Services, as applicable). Any subsequent business relationship, exchange of data or other interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party, and may require Customer to agree to a third party’s terms and conditions. Regardless of any recommendation by SEMSblast or use of such third party products or services, SEMSblast does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. Further, SEMSblast cannot guarantee that use of such Third Party Products or Services will always be provided during the Term. While SEMSblast may rely on data or information provided or generated by such third party products and services in the course of providing the Service (and the Professional Services, as applicable), Customer hereby acknowledges that SEMSblast specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that SEMSblast shall not be liable for any acts or omissions based on its reliance thereon. Accordingly, Customer hereby releases and holds harmless SEMSblast from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.

 

18. Open Source Software. Customer acknowledges and understands that certain open source code may be incorporated into the Service (the “Source Code”). Except as otherwise set forth in the applicable Source Code license, the Source Code is provided “as is,” and without representation or warranty of any kind. Customer hereby releases and holds harmless SEMSblast from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising therefrom.

 

19. Disclaimer of Warranties. THE SERVICE (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SEMSBLAST AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICE OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICE OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICE OR THE PROFESSIONAL SERVICES.

 

20. Limitation of Liability. IN NO EVENT WILL SEMSBLAST OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICE (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF SEMSBLAST OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL SEMSBLAST OR ANY REPRESENTATIVE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICE, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO SEMSBLAST FOR THE SERVICE DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against SEMSblast more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or SEMSblast’s non-provision, of the Service (or the Professional Services as the case may be), Customer’s sole and exclusive remedy shall be for SEMSblast to use commercially reasonable efforts to repair or provide the Service (or the Professional Services as the case may be).

 

21. Indemnification. Customer agrees to indemnify, defend and hold harmless SEMSblast, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from: (i) Customer’s acts or omissions; (ii) Customer’s violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada’s Fighting Internet and Wireless Spam Act, or the Policies; (iii) Customer’s breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer’s breach of any of its representations or warranties set forth herein; and/or (v) Customer’s infringement or misappropriation of any intellectual property rights or other rights of any person or entity.

 

22. Term and Termination. The Sales Order determines the initial term (the “Initial Term”) of your Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms equal to the same period of time as the Initial Term (each, a “Successive Term,” together with the Initial Term, the “Term”), and you will continue to be billed for the Fees until this Agreement is terminated in accordance with the terms and conditions set forth herein. At any time during the Term, either Customer or SEMSblast may terminate this Agreement for any reason. If Customer desires to terminate this Agreement, Customer may request a termination by calling SEMSblast at support@SEMSblast.com, Monday through Friday, between the hours of 8:00 a.m. (EST) and 8:00 p.m. (EST) (a “Valid Termination Notice”). Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment term (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. If Customer wishes to terminate only the Professional Services, it should contact its account manager prior to such services being performed. SEMSblast may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Such right to terminate this Agreement shall include SEMSblast's right to terminate its provision of the Service and/or the Professional Services (as applicable) and to pursue all available equitable and legal remedies (in the event Customer breaches any term or condition, or any of its representations or warranties set forth herein). Upon termination of this Agreement for any reason, all Customer Recipient Data may be destroyed and deleted in accordance with the terms and conditions set forth in Section 8 above. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay SEMSblast Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.

 

23. Governing Law. This Agreement will be governed by the laws of the State of Florida as applied to agreements entered into and performed entirely within the State of Florida, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.

 

24. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Miami, Florida. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, SEMSblast shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of Florida a partnership, joint venture or agency relationship between SEMSblast and Customer. Customer does not have any right, power, or authority to act as a legal representative of SEMSblast.

 

25. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of SEMSblast 

 

Affiliate Agreement

PLEASE REVIEW THIS AFFILIATE AGREEMENT (THIS “AGREEMENT”) AS IT CONSTITUTES A LEGAL AGREEMENT BY AND BETWEEN SEMSBLAST (“SEMSBLAST”) AND YOU (“AFFILIATE”), TO BE EFFECTIVE ON THE DATE YOU SUBSCRIBE TO AN SEMSBLAST CUSTOMER ACCOUNT (THE “EFFECTIVE DATE”). BY USING THE SERVICES (AS DEFINED IN ICONTACT’S END USER SERVICES AGREEMENT (THE “EUSA”), YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.

 

SEMSblast is the licensed provider of SEMSblast email marketing and list management software (the “Software”). Affiliate wishes to promote the Software via a landing page pursuant to the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

 

1. Appointment: Subject to the terms and conditions set forth in this Agreement, SEMSblast hereby appoints Affiliate, and Affiliate hereby accepts such appointment, to promote and market the Software in accordance with the terms and conditions set forth herein, with the intention of referring to SEMSblast each month unique and bona fide subscribers for the use of the Software (each, an “SEMSblast Customer”).

 

2. Affiliate Landing Page: Within thirty (30) days after the Effective Date, unless otherwise agreed by SEMSblast in writing, SEMSblast will create and maintain during the Term (as defined below) for Affiliate a landing page upon which SEMSblast's Marks (as defined below) will be displayed prominently. This landing page will be coded with an Affiliate ID # so that all transactions and sales from SEMSblast Customers can be tracked and correctly applied and credited to Affiliate’s account. Once a visitor to such page becomes an SEMSblast Customer, an Affiliate ID # will be hard coded to such SEMSblast Customer’s account, through which Affiliate’s account will be credited for every payment made by such SEMSblast Customer. At any time during the Term, Affiliate may log onto Affiliate’s account and use the link found within the ‘Partner Central’ section to track total number of SEMSblast customers and commissions for each month.

 

3. Licenses: In connection with each party’s performance of its obligations set forth herein, each party (in such capacity, the “Licensor”) : (i) represents and warrants to the other party (in such capacity, the “Licensee”) that it is the sole and exclusive owner of any trade names, trademarks, service marks, “d/b/a”s, names, URLs, or logos (collectively, the “Marks”) that Licensor provides to Licensee hereunder, and that such provision will not violate or otherwise infringe upon any intellectual property or other rights of any third party; and (ii) hereby grants to Licensee a limited, nonexclusive, royalty-free license to use Licensor’s Marks during the Term in connection with the performance of Licensee’s obligations hereunder. Licensee hereby agrees not to: (x) alter or otherwise modify any of Licensor’s Marks; (y) attack ownership of, or rights to, any of Licensor’s Marks; or (z) intentionally use the Licensor’s Marks in a way that might deceive others, create a likelihood of confusion or destroy or diminish the goodwill in any of the Licensor’s Marks.

 

4. Term and Termination: This Agreement shall commence on the Effective Date, and shall continue until terminated by SEMSblast, by providing Affiliate with prior written notice of its intention to so terminate; or by Affiliate, by providing SEMSblast with fifteen (15) days’ prior written notice of its intention to so terminate (the “Term”). Upon any termination of this Agreement, the licenses granted in Section 3 above shall terminate effective immediately as of the date of such termination. Notwithstanding any such termination, the terms and conditions set forth in Sections 4, 5, 7, 8, 9, 10, 12, 14 and 18 hereof shall survive; provided, however, that if this Agreement is terminated by SEMSblast due to Affiliate’s breach of any term or condition set forth in this Agreement or of any of Affiliate’s representations and warranties set forth herein, as determined by SEMSblast in its sole discretion, Affiliate shall not be entitled to any commission payments arising pursuant to Section 5 below after the date of such breach.

 

5. Commission: During the Term, SEMSblast agrees to pay Affiliate a commission equal to: (i) fifteen percent (15%) of all Revenue (as defined below) actually received from each SEMSblast Customer referred to SEMSblast by Affiliate; and (ii) five percent (5%) of all Revenue generated by affiliates referred to SEMSblast by Affiliate, which enter into affiliate agreements with SEMSblast substantially similar to this Agreement (each, a “Second Tier Affiliate”); provided, however, that: (A) for SEMSblast Customers which SEMSblast determines, in its sole discretion, are SEMSblast for Salesforce or Agency customers, SEMSblast will not pay Affiliate any commission; (B) for SEMSblast Customers which SEMSblast determines, in its sole discretion, are enterprise, large sender, or managed account customers, SEMSblast agrees to pay Affiliate a commission equal to ten percent (10%) of all Revenue (as defined below) actually received from each SEMSblast Customer referred to SEMSblast by Affiliate; and (C) SEMSblast will pay Reseller a monthly commission of no more than $175 for each SEMSblast Customer. Except as otherwise set forth in Section 4 above, Affiliate will continue to receive the commission payments described in this Section 5 for the life of each SEMSblast Customer in accordance with the terms and conditions set forth herein. Commission payments will be based on Revenue actually received by SEMSblast from SEMSblast Customers in a calendar month, as calculated on the first day of the immediately subsequent calendar month (the “Month of Payment”), and will be mailed to Affiliate no later than the fifteenth (15th) day of the Month of Payment, by check made payable to Affiliate or Affiliates PayPal account. Such payments will be made after Affiliate’s cumulative commissions exceed $30.00 (or in the case of non-U.S.-based Affiliate, such payments will be made after cumulative commissions exceed US$100.00). For purposes hereof, “Revenue” means gross revenue actually received by SEMSblast from each SEMSblast Customer minus any refunds, rebates, setoffs, discounts, promotions, charge backs, non-payments, or defaults, any of which may be set-off against amounts already paid to Affiliate.

 

6. Marketing Materials: During the Term, Affiliate may use graphics, text, and sample promotions provided in Affiliate Central to promote the Software. Affiliate may not use unsolicited commercial email to promote the Software, which includes mass emails sent to recipients who have not requested it (not opted-in) and with whom Affiliate has no prior relationship, and any other definition of “spam” as defined under applicable law. Any such use will be considered a material breach of this Agreement and will result in the termination of this Agreement in accordance with the terms and conditions set forth in the last sentence of Section 4 above.

 

7. SEMSblast ​Pricing and Customer: SEMSblast reserves the sole and exclusive right to review, modify or change its posted pricing, and to accept, reject, suspend or terminate service to any SEMSblast Customer or prospect, at any time and without regard to, limitation from, or restriction by Affiliate or any of the terms or conditions set forth herein.

 

8. Disclaimer of Warranty: THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SEMSBLAST AND ITS AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THIS AGREEMENT. SEMSBLAST AND THE REPRESENTATIVES DO NOT WARRANT THAT THE SOFTWARE WILL MEET SEMSBLAST CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE.

 

9. Affiliate’s Representations, Warranties and Covenants: Affiliate represents and warrants to SEMSblast that: (i) in connection with the appointment described herein, Affiliate will at all times comply with all applicable laws; (ii) Affiliate will at all times present the Software to potential customers, accurately, fairly and truthfully and will not make any misleading, unfair or deceptive statements about SEMSblast or the Software, or misrepresent either in any way; (iii) Affiliate will not disparage SEMSblast or the Software during the Term or at any time after the termination thereof; (iv) Affiliate will do all things reasonable to promote the good reputation of SEMSblast and the Software; (v) Affiliate’s execution, delivery and performance of this Agreement will not result in any violation of any other agreement or arrangement; and (vi) none of the Affiliate’s Marks will violate or infringe upon the intellectual property, or other rights, of any third party.

 

10. Limited Liability: In no event will SEMSblast be liable to Affiliate or SEMSblast Customers for any special, direct, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the Software or this Agreement, including, but not limited to, damages for losses of profits, loss of business or goodwill, loss of data or use of data, interruption of business, even if SEMSblast was advised in advance of the possibility of such losses or damages. SEMSblast'S total cumulative liability to Affiliate or to any other party for claims, losses or damages of any kind, whether based on contract, tort, negligence or otherwise, arising out of or related in any way to this Agreement or the Software will not exceed the commission actually paid to Affiliate in the calendar month immediately preceding the month in which such claim, loss or damage arose. SEMSblast is not, and will not be, responsible or liable for any downtime or failure of performance or slowdown in deliverability that may occur from time to time.

 

11. Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations of discussion heretofore and between the parties related to this Agreement. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein.

 

12. Governing Law: This Agreement shall be governed by, and enforced in accordance with, the laws of the State of Florida, without regards to its conflicts of law provisions. Both parties hereto irrevocably consent to the jurisdiction of the state and federal courts located in Miami Dade County, Florida.

 

13. Relationship of the Parties: Although references are made in this Agreement to the term “Affiliate,” the parties do not intend to create a partnership or joint venture in the legal sense, but only a referral relationship. The parties agree that they are independent contractors and that neither of them has any fiduciary duty to the other. Neither party is the agent of the other. Neither party may represent to any person that it has the power to bind the other party on any service contract or other agreement, or take any action reasonably likely to lead a third party to believe that it is the agent or representative of the other party.

 

14. Indemnification: Affiliate hereby agrees to indemnify, defend and hold harmless SEMSblast , and its officers, directors, stockholders, employees, agents, successors and assigns (the “Indemnified Parties”) from and against any and all liabilities, losses, damages, claims, suits, judgments, costs, expenses (including reasonable attorneys’ fees and costs of any investigation or action related thereto) and actions suffered or incurred by the Indemnified Parties as a result of: (i) Affiliate’s performance, failure to perform or improper performance of this Agreement; (ii) Affiliate’s material breach of any of its representations or warranties set forth herein, or any term or condition set forth in this Agreement; (iii) the Indemnified Parties’ use of Affiliate’s Marks in accordance with the terms and conditions set forth herein; or (iv) Affiliate’s acts, omissions or intentional misconduct.

 

15. Assignment and Binding Effect: Affiliate may not assign this Agreement without first seeking and obtaining SEMSblast's prior written consent. All assignments in violation of this restriction set forth in this Section 15 shall be considered null, void and of no legal effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

 

16. Waiver: No waiver by SEMSblast of any provision or condition of this Agreement shall be effective unless such waiver is expressed in writing and signed by an authorized representative of SEMSblast. iContact’s failure to enforce any provision of this Agreement will not constitute a waiver of its right to subsequent enforcement of such provision or any other provision of the Agreement.

 

17. Amendment: Any modification or amendment of any provision of this Agreement must be made in writing and signed by an authorized representative of each party.

 

18. Other Agreements: Affiliate has entered into certain other agreements with SEMSblast, including, without limitation, the EUSA (the “Other Agreements”). While each of the Other Agreements constitutes a separate legal agreement between the parties, such agreements may address subject matter related to this Agreement. In the event of any conflict between any term or condition set forth in this Agreement and in any of the Other Agreements, the term or condition which most favors SEMSblast, as determined in SEMSblast's sole discretion, shall prevail.

 

Digital Millennium Copyright Act: Notice and Take Down Procedures, Copyright Agent.

SEMSblast respects the intellectual property rights of others, and SEMSblast requires its customers and those that visit its website(s) to do the same.

If you believe that your work has been copied on an SEMSblast-hosted site in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to SEMSblast's Copyright Agent:

 

1. Your postal address, telephone number and email address;
2. A detailed description of the copyrighted work that you claim has been infringed; along with the URL that contains the claimed infringing material that you are asking be removed;
3. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you as the copyright owner, its agent, or the law;
4. A statement by you that the information in your notice is accurate, and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
5. A physical or electronic signature of the owner of the copyright or person authorized to act on behalf of the owner.

 

Our contact information for notice of claims of copyright infringement relating to our site is:

SEMSblast - Smart eMail Marketing Solution
Email: support@SEMSblast.com