PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND PINPOINTE ON-DEMAND, INC. ("Pinpointe" OR "WE").
BY SIGNING UP WITH POINPOINTE, YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT FOR SERVICES AND YOU ARE NOT BEING GRANTED A LICENSE TO ANY SOFTWARE UNDER THIS AGREEMENT.
Our customers retain and authorize Pinpointe to transmit messages and provide information to their Recipients on their behalf. In the course of providing those Services, Customers provide us with personal information relating to their Recipients.
During the term of this Agreement and subject to the terms and conditions set forth herein and any guidelines, rules or operating policies that Pinpointe may establish and post from time to time on www.Pinpointe.com (the "Site"), including, without limitation Pinpointe's anti-spam policy, Privacy Policy and prohibited content and commerce statement (collectively, the "Policies"), Pinpointe agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, Pinpointe may modify the terms and conditions of this Agreement and/or the Policies. All such changes shall become effective upon posting of the revised Agreement and/or Policies, as the case may be, on the Site, and Customer's use of the Services thereafter shall be subject thereto.
Pinpointe Products and Services
Monthly Recurring Plans
Our charges for our monthly recurring plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the "Term." Payments are due every 30 days from the date of the month you signed up with us and made your first monthly payment (the "Pay Date").
Monthly Plans – No Overage Charges. If you consume all of your email credits available in your subscription plan for a given period, you may purchase additional ‘top-it-off’ credits that can be used for the remainder of the calendar month. Pinpointe does *not* automatically add credits to your account, and then later bill you for ‘overage’ usage in any given month. Any unused credits are not ‘rolled over’ to the following month or period.
As long as you are an “Active Customer” or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
Pay-as-You-Go-Plans
You may elect to buy "Email Credits" to use our Services, as explained on the "Pricing" page of our website, rather than sign up for a monthly plan. If you elect a "Pay-as-You-Go Plan," you will still be considered an "Active Customer" while your credits are valid, and all the terms of this Agreement will still apply to you other than the requirement that you pay us monthly.
Professional Services. In addition to the Services, Customer may purchase certain premium services which may be customized pursuant to a mutually agreed upon written statement of work. The Professional Services are provided by Pinpointe separate and distinct from the Services and are not required for Customer's use or enjoyment of the Services. Any Statement of Work may be modified or amended with the written consent of each of Pinpointe and Customer.
Money Back Guarantee
Pinpointe offers a 30 day, money back guarantee. We’re confident you will like our product and services so our terms are simple. If you try Pinpointe and you are not satisfied, we will refund your payment 100% (up to $380) as long as you abide by our Terms of Service, and you abide by our anti-spam policies. Please note that if you upload a list of non opt-in, purchased contacts and send email to these contacts, you will have violated our terms of service and will not be eligible for our money-back guarantee. Our Money-Back-Guarantee is valid for customers in the first 30 days after initial sign-up.
Fees and Payment
In consideration for the Services to be provided by Pinpointe, you agree to pay all fees set forth in the Service Order. You agree:
- Pinpointe fees after the 30-day money back guarantee period are non-refundable. We may, at our sole discretion, offer refunds in other situations subject to any Active Customer seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.
- Pinpointe reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
- If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
- If a user causes one or more of our IP addresses to be added to a primary blacklist (SORBS or Spamhaus) as a result of directly violating our terms of service, Pinpointe reserves the right to charge customer up to $200 per IP address that has been affected and the customer account may be temporarily suspended until listings are resolved. Pinpointe, at it's sole discretion, may elect to waive these charges.
- If, for some reason we are unable to process your credit card, eCheck, Paypal order, or we do not receive your pre-paid check when due, Pinpointe will attempt to contact you by email and your account may be suspended until your payment can be processed. In the event you fail to make timely payments when due, Pinpointe may, at its election, discontinue, terminate or suspend the Services and delete all Customers Data from its systems, in each case, without incurring any liability to you, the Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Subscription Fees for the remainder of the term of this Agreement.
- You agree to pay for all emails you send from your Pinpointe account, even if you accidentally sent the wrong campaign to the wrong list, or if messages are blocked by any third party (we have no control over your recipients' email servers, ISP availability, personal spam filter settings, etc)
- For pay-as-you-go accounts, your email credits "roll over" each month, for up to 1 year. After 1 year from the date of purchase, pay-as-you-go credits expire. Your account and credits can be re-activated and will roll over for another 12 months if you purchase additional pay-as-you-go credits within 10 days of the above expiration date. However, if you do not log in to your account at least once for 12 months, your account (including all campaigns, lists, and other data) may be deleted permanently from our system.
Cancellation
If you need to cancel your subscription, please contact us at 408-834-7577 or via email at[email protected]. You can also directly terminate your account form the 'Account Settings' tab within your Pinpointe account. Details can be found in our Cancellation Policy, posted onwww.pinpointe.com.
Term, Termination and Removal
Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. You can cancel your account by contacting Pinpointe Sales by phone at 408-834-7577 or via email at [email protected] at any time in accordance with our “Cancellation Policy” which can be found on our website.
We may suspend our Services to you at any time with or without cause. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage. Additionally, if you do not log in to your account for 6 or more months, we may deem your account "inactive" and permanently delete your account and all data associated with it.
If you terminate your account, as a courtesy Pinpointe may retain your data for up to 30 days, after which all data will be permanently removed.
Data Retention. Pinpointe retains campaign historical information for active customers for a period of at least 12 months. Data beyond 12 months may not be retained and/or may be removed as necessary.
General Rules
You agree to the following:
- You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.
- You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.
- You will not share your password. You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
- You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
- You agree to abide by Pinpointe’s Anti-SPAM policies posted on our website and incorporated herein.
- You agree to permit Pinpointe to add your logo to our 'Customers' section of our website. Pinpointe will not issue any announcements or press releases or otherwise represent that you are a customer without your prior written consent.
- Proprietary Rights Owned by Us. You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
- Proprietary Rights Owned by You. You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
Representations, Warranties and Covenants
Customer represents, warrants and covenants to Pinpointe 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, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (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.
Disclaimer of Warranties
THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Pinpointe 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 SERVICES. Pinpointe AND THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
Limitation of Liability
IN NO EVENT WILL PINPOINTE OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF PINPOINTE OR ITS REPRESENTATIVES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL Pinpointe AND THE REPRESENTATIVES' 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 OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO PINPOINTE FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or Pinpointe non-provision, of the Services (or the Professional Services), Customer's sole and exclusive remedy shall be for Pinpointe to use commercially reasonable efforts to repair or provide the Services.
Indemnification
Customer agrees to indemnify, defend and hold harmless Pinpointe, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys' fees) arising from Customer's negligence or intentional misconduct, Customer's violation of any applicable law, including the federal CAN SPAM Act, 15 U.S.C. 7701-7713, this Agreement or the Policies, Customer's breach of any of its representations, warranties or covenants set forth herein, or Customer's infringement of any intellectual property rights or other rights of any person or entity.
Governing Law
This Agreement will be governed by the laws of the State of California as applied to agreements entered into and performed entirely within the State of California, without regard to any choice of law provisions thereof. 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.
Relationship
This Agreement does not create a partnership, joint venture or agency relationship between Pinpointe and Customer. Customer does not have any right, power, or authority to act as a legal representative of Pinpointe.
Notification of Security Breach
In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a "List"), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
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 Pinpointe. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
Severability
In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
Survival
The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
Entire Agreement
This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between Pinpointe and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Pinpointe and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.
No Waivers
Pinpointe's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
Notices
Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered to us at our stated office location, or such replacement addresses as we may later provide on the Website.
Privacy Policy. You agree that we may access, collect, use and disclose your information as set forth in our Privacy Policy. In this regard the terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties hereto.
Miscellaneous
Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by Pinpointe and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third-party beneficiaries.
Force Majeure. We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, epidemics, war, terrorist acts, fires, explosions, strikes, power blackouts, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow-downs over the internet or any third party internet service providers.