1. Copyright and Trademark Information
Copyright © 2012 NMD, Inc. | eMerge™ All Rights Reserved. This web site, and the information which it contains, is the property of NMD, Inc. dba eMerge™ and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "eMerge", “easyeMerge”, “REALeMerge” and the eMerge™ logo are either trademarks or registered trademarks of eMerge™ and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of eMerge™’s trademark or other intellectual property rights concerning that name or logo.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement, you hereby represent, acknowledge and agree that:
- eMerge may not be used for the sending of unsolicited email (sometimes called "spam").
- eMerge™ may only be used for lawful purposes.
- eMerge™ offers various subscription models: month-to-month, annual agreements or outside written Agreements.
- You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with eMerge™.
- You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of eMerge™. You hereby covenant that you shall not use any other lists in connection with your use of eMerge™.
- You acknowledge and agree that not all email messages sent through use of eMerge™ will be received by their intended recipients.
- Every email message sent by you in connection with eMerge™ must contain the eMerge™ "unsubscribe" link that allows the recipient to remove themselves from your mailing or text list.
- You will comply with the restrictions on content of email messages and activities using eMerge™ as set forth or referenced in this Agreement.
- You acknowledge and agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using eMerge™.
- You agree that the "from" line of any email message sent by you using eMerge™ will accurately and in a non-deceptive manner identify your organization, your product or your service.
- You agree that the "subject" line of any email message sent by you using eMerge™ will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
- You agree to include in any email message sent by you using eMerge™ your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
- You will adopt and maintain the eMerge™ SMS Acceptable Use Policy, which may be modified by eMerge™ from time to time.
- You acknowledge and understand that eMerge™ is not responsible or otherwise liable for modifications, updates or service changes related to third party connections and that these third party changes may result in varied service and connectivity within your eMerge™ account.
- If you are accessing or using eMerge™ through a third party service or web site ("Third Party Service"), you will abide by these Terms and Conditions of Use regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in these Terms and Conditions of Use.
3. Products and Support
If you are accessing or using the Products through a Third Party Service, you agree and acknowledge that eMerge™ is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that eMerge™ may terminate such Third Party Service’s ability to interact with the Products at any time, with or without notice, and in eMerge™’s sole discretion, with no liability to you or the third party.
4. Fees and Payment
4.1 Fees for Product. The eMerge™ Products offer various fee structures: month-to-month, annual agreements and written outside agreements. Pricing and additional terms of eMerge™ Products vary based on each specific set of agreement terms. For most eMerge™ accounts, the base Fees are based on the highest number of subscribers or contacts in your account at any time during the month. For purposes of this Agreement, each unique email address will count as one subscriber or contact. Additional fees and add-ons are clearly outlined. Failure to make monthly payment will result in access to eMerge™ being disabled until payment is received. Fees are billed automatically each month, even if you are not actively using the eMerge™ Product.
4.2 You are responsible for reviewing the Price Schedule from time to time and remaining aware of the fees charged by eMerge™. The Price Schedule, including subscriber levels is subject to change at any time in eMerge™’s sole discretion. eMerge™ will use good faith efforts to notify you via email prior to the effectiveness of any change to the Price Schedule. If you receive special discounts through a marketing partner, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case eMerge™’s standard rates will apply. eMerge™ may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account. Repeated uploading and removing of unique email addresses in an attempt to circumvent eMerge™’s Price Schedule and billing procedures is prohibited.
4.3 Payment. Payment for Products will be made by a valid credit card accepted by eMerge™. Fees are payable in U.S. dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize eMerge™ to charge your credit card for such amounts on a regular monthly basis and continuing until such time as your account is terminated. If eMerge™ is for any reason unable to effect automatic payment via your credit card, eMerge™ will attempt to notify you via email and your eMerge™ account will be disabled until payment is received. Amounts paid for the Products are not refundable.
5. Email, Permission Practices, Image Hosting & Prohibited Content
5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. If you have used the eMerge™ feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails or text messages to that recipient. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy an eMerge™ template or any other features or functionality from the Products and use them for any purpose other than sending appropriate messages from the Products. Emails or text messages that you send through the Product may generate spam complaints from recipients. As a matter of privacy, eMerge™ cannot share with you the email addresses of those who complain about your messaging. You are responsible for ensuring that your campaigns do not generate a number of spam complaints in excess of industry norms. eMerge™, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. eMerge™ will terminate your use of its Products if eMerge™ determines that your level of spam complaints is higher than industry norms.
5.3 Footers. For every message sent in connection with the Products, you acknowledge and agree that eMerge™ may add an identifying footer stating "This email was provided courtesy of eMerge™” or a similar message.
5.4 Images. Images hosted by eMerge™ on eMerge™ controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by eMerge™, eMerge™ hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.
5.5 Prohibited Content. eMerge™ prohibits the use of the Products or web site by any person or entity that:
- Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
- Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
- Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
- Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
- Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
- Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
- Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
- Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
- Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
- Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
- Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
6. Restrictions and Responsibilities
6.1 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by eMerge™ in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that eMerge™ perform such work at its standard professional services rates. eMerge™ can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
6.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although eMerge™ has no obligation to monitor the content provided by you or your use of the Products, eMerge™ may do so and may block any messages, remove any such content or prohibit any use of the Products that eMerge™ believes may be (or is alleged to be) in violation of the foregoing.
6.4 Indemnification. You hereby agree to defend, indemnify and hold harmless eMerge™ and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) arises from your activities or postings on the eMerge™ Community, (iv)otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that eMerge™ has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
6.5 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to eMerge™. eMerge™ may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of eMerge™, eMerge™ may share your information with the marketing partner and the marketing partner may share related information with eMerge™. Except as described above. eMerge™ will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your eMerge™ account was terminated from due to unsolicited commercial email or text being sent from your eMerge™ account. eMerge™ will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists. In the event eMerge™ amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.
6.6 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to eMerge™ or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to eMerge™ by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to eMerge™ by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted— eMerge™ a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
Unless you are under an annual or outside agreement, you may terminate this Agreement with thirty-days written notice. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND EMERGE™ IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
eMerge™ may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. eMerge™ shall have no liability to you or any third party because of such termination or action.
eMerge™ may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. eMerge™ will provide upon request the list of unsubscribe requests from your account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
If your account is classified (at eMerge™’s sole discretion) as inactive for over 120 days, eMerge™ has the right to permanently delete your subscriber data. eMerge™ will use good faith efforts to contact you via email prior to taking any permanent removal actions.
8. Warranty Disclaimer; Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. EMERGE™ DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND EMERGE™ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for eMerge™ to use commercially reasonable efforts to adjust or repair the Products.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EMERGE™ OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS " EMERGE™ ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF EMERGE™ SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, EMERGE™ IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF EMERGE™ TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY EMERGE™ TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Restricted Persons; Export of Products or Technical Data
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify eMerge™ within twenty-four (24) hours, and eMerge™ shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to eMerge™.
You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
11. Links to Third-Party Web Sites
This web site may contain links to non- eMerge™ web sites. These links are provided to you as a convenience, and eMerge™ is not responsible for the content of any linked web site. Any non- eMerge™ web site accessed from this web site is independent from eMerge™, and eMerge™ has no control over the content of that web site. In addition, a link to any non- eMerge™ web site does not imply that eMerge™ endorses or accepts any responsibility for the content or use of such web site.
12. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by eMerge™ of that third party or of any product or service provided by a third party.
13. Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from this web site or the Products infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting eMerge™ and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) email address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
14. Open Positions on Career Pages
eMerge™ may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.
15. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. eMerge™ will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by email or by phone, or through a Third Party Service, if any, through which you access the Products. eMerge™ has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. eMerge™ shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.
16.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16.2 eMerge™ and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
16.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind eMerge™ in any respect whatsoever.
16.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
16.5 The Agreement shall be governed by the laws of the State of Louisiana, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in St. Tammany Parish, Louisiana.
17. Third Party Integrations
eMerge features api integration with multiple third-party applications. eMerge is not liable or in any way responsible for the functionality of these third-party applications. Should a third-party application make modifications to their functionality that affects the services or offerings supplied by eMerge, eMerge is not liable or financially responsible for requested account adjustments on your behalf.
18. Rights of Use
By using eMerge custom campaign services or the Total Market Dominator program, you authorize eMerge the rights to use visual and written examples of your campaigns in eMerge marketing endeavors, case studies and other promotional material that do not conflict with any written confidentiality agreements you may have with eMerge.
If you have any questions about the rights and restrictions above, please contact eMerge at 985-781-4471.
Copyright ©2012, eMerge™ All Rights Reserved.
Revised September 2012