Legal Info

 

The gist:

 

We (the folks at FlashIssue, Inc.) run a curation and email newsletter service called Flashissue.com and would love for you to use it. Our basic service is free, and we offer paid upgrades for advanced features & services such as curation services and bulk emailing your newsletter for you. Our service (collectively, “FlashIssue” or the “Service”)  is designed to give you as much control and ownership over what goes on your emails as possible and encourage you to express yourself freely. However, be responsible in what you publish. In particular, make sure that none of the prohibited items listed below appear on the website or in your emails. If you are using curated content you must comply with the terms and conditions of all of the sites where the content originally appears. You are also responsible for obtaining the rights to any photos, videos or any other content that you use in your emails.

Terms of Service:

The following terms and conditions govern all use of the Service and all content, features and products available at or through the Service. The Service is owned and operated by Flash Issue, Inc. (“Flash Issue”). The Service is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, FlashIssue’s Privacy Policy) and procedures that may be published from time to time on this Site by Flash Issue (collectively, the “Agreement”).

Please read this Agreement carefully before accessing or using the Service. By accessing or using any part of the Service, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Service or use any services. If these terms and conditions are considered an offer by FlashIssue, acceptance is expressly limited to these terms. The Service is available only to individuals who are at least 18 years old.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on December 6, 2012. It is effective between You and Us as of the date of You accepting this Agreement.

Table of Contents

1. Definitions
2. Purchased Services
3. Use of the Services
4. Non-Flash Issue Providers
5. Fees and Payment for Purchased Services
6. Proprietary Rights
7. Confidentiality
8. Warranties and Disclaimers
9. Mutual Indemnification
10. Limitation of Liability
11. Term and Termination
12. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
13. General Provisions

 

1. DEFINITIONS

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

Non-Flash Issue Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services, including but not limited to those identified as Flash Issue connectors.

Order Form” means the documents or online forms for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.

Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.

Services” means the products and services that are ordered by You under an Order Form and made available by Us online via the customer login link at http://www.Flashissue.com and/or other web pages designated by Us, including associated offline components, as described in the User Guide. “Services” exclude Non-Flash Issue Applications.

User Guide” means the online user guide for the Services, accessible at http://uservoice.flashissue.com as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide.

Users” means individuals who are authorized by You to use the Services, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

We,” “Us” or “Our” means the Flash Issue company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).

You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

Your Data” means all electronic data or information submitted by You to the Purchased Services.

 

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2. PURCHASED SERVICES

2.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

 

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3. USE OF THE SERVICES

3.1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

3.2.  Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.  We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

  • Account information: In using the varied features of the Service, you may provide information (such as name, contact information, or other registration information) to Us. We may use this information and any technical information about your use of the Services to tailor its presentations to you, recommend content, facilitate your movement through the Service, or communicate separately with you.

3.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

3.4. Usage Limitations And Fair Use. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the Order Form. The Services provide real-time information to enable You to monitor Your compliance with such limitations.

We reserves the right to review usage of unlimited usage plans to ensure that you are not abusing such plans. You agree to use unlimited minute plans for normal email campaigns and will not employ methods or devices to take advantage of unlimited plans by using Services excessively or for means not intended by us. We may terminate service immediately if we determine, in our sole discretion, you are abusing the unlimited Service plans.

For purposes of this policy and our Service, “unlimited usage” means the combined number of emails sent, as determined by us in our sole discretion. We reserve the right to at any time to enforce this policy in accordance with its terms. You agree that your level of usage of our unlimited Service plans will be comparable to that of the average small business customer utilizing such plans. We deem usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. You agree that We have the right to terminate your service or charge you additional fees if your usage is considered abusive in the sole discretion of Flash Issue.

If it is determined that your usage is abusive, you agree to pay a per email fee of use in excess of those levels AT THE THEN-CURRENT RATE ESTABLISHED BY Flash Issue, which is currently $0.01 per recipient and, at our sole option, your service will be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL SERVICES INCLUDING THE UNLIMITED PLANS.

3.5 Responsibility of Contributors. If you post material to the Service for use in emails or on the webiste, post links on the website, or otherwise make (or allow any third party to make) material available by means of the Service (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:

  • the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
  • if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
  • you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
  • the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
  • the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
  • the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
  • your emails are not named in a manner that misleads your readers into thinking that you are another person or company.

3.6 By Submitting Content to Flash Issue for inclusion in the Service, you grant Flash Issue a worldwide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the content solely for the purpose of displaying, distributing and promoting your emails.

3.7 Our Responsibility for Content.

  • We do not guarantee the accuracy or integrity of content used in the Service and We cannot be held liable for any damages arising from the use of such content.
  • We strive to comply with the terms of service of other third party APIs and sites being used within its platform. No rich media content such as video, photos or other similar content is stored on our servers, except for images you elect to upload for use in your emails (for example, the banner image).  We only provide links to the rich media content. We bear no responsibility for the content, or liability for the reposting of the content, contained in those links and We cannot be held liable for any damages arising from the use of such content.
  • Without limiting any of those representations or warranties, We have the right (though not the obligation) to, in our sole discretion (i) refuse or remove any content that, in our reasonable opinion, violates any of our policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Service to any individual or entity for any reason, in our sole discretion. We will have no obligation to provide a refund of any amounts previously paid.

3.8 Rules for Email Compliance. Users of the Service must adhere to the rules of the Federal CAN-SPAM act and Our Privacy Policy when sending emails through the Service. Accordingly, we require that emails sent through the Service: (a) must contain a one-click unsubscribe link and (b) must contain non-Internet contact information of the sender, such as your company’s address, or your company’s phone number. We add this to the footer of every campaign, and it can be edited in your “Account” settings.

3.9 Anti-Spam and Abuse Related Rules. You agree to the following: Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus websitehttp://www.spamhaus.org/definition.html

Delivery: You agree to pay for all emails you send from your account, even if messages are blocked by any third party (we have no control over your recipients’ email servers, ISP availability, personal spam filter settings, etc).

3.10 3rd party email delivery. If you are using a 3rd party integrated service provider to send your emails using our Service, then you are bound by the rules & regulations of that service provider. You also accept that We can not be held responsible for any part of the delivery process.

 

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4. NON-FLASH ISSUE PROVIDERS

4.1. Acquisition of Non-Flash Issue Products and Services. We  or third parties may  from time to time make available to You (e.g., through connectors)  third-party products or services, including but not limited to  Non-Flash Issue Applications and implementation, customization and other consulting services.  Any acquisition by You of such non-Flash Issue products or services, and any exchange of data between You and any non-Flash Issue provider, is solely between You and the applicable non-Flash Issue provider. We do not warrant or support  non-Flash Issue products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.  Subject to Section 4.3 (Integration with Non-Flash Issue Services), no purchase of non-Flash Issue products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.

4.2. Non-Flash Issue Applications and Your Data. If You install or enable Non-Flash Issue Applications for use with Services, You acknowledge that We may allow providers of those Non-Flash Issue Applications to access Your Data as required for the interoperation of such Non-Flash Issue Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-Flash Issue Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-Flash Issue Applications for use with the Services.

4.3.  Integration with Non-Flash Issue  Services. The  Services may contain features  designed to interoperate with Non-Flash Issue Applications (e.g., Google, Olark or other applications).  To use such features, You may be required to obtain access to such Non-Flash Issue.com Applications from their providers.  If  the provider of any  such Non-Flash Issue Application ceases to make the Non-Flash Issue Application available  for interoperation with the corresponding Service features  on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

 

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5. FEES AND PAYMENT FOR PURCHASED SERVICES

5.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, and (ii) payment obligations are noncancelable and fees paid are non-refundable. Services subscription fees are based on annual, quarterly or monthly periods as specified in the Order Form that begin on the subscription start date and each annual, quarterly, or monthly anniversary thereof; therefore, fees for Services subscriptions added in the middle of the specified annual, quarterly, or monthly period will be charged pro-rata for that period and the periods remaining in the subscription term.

  • Changes: We reserves the right to change our fees at any time by posting a new fee structure to our Service and/or sending you a notification of the change by email.

5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, valid ACH information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Services Subscriptions). Such charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for  Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.  We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to You.

5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

5.6 Support: Upgrade Services include access to priority email support. “Email support,” means the ability to make requests for technical support assistance by email at any time (We will make reasonable efforts to respond within one business day) concerning the use of the Upgrade Services. “Priority” means that support for paying customers takes priority over support for users of any free Service. All Upgrade Services support will be provided in accordance with Our standard practices, procedures and policies.

5.7. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.

 

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6. PROPRIETARY RIGHTS

6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

6.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement.  Subject to the above, We acquire no right, title or interest from  You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

6.4. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.

6.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

6.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense  transactions, DFAR 252.227-7015 (Technical Data  – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 

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7. CONFIDENTIALITY

7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data;  Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

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8. WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii)  the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 4.3 (Integration with Non-Flash Issue Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (v) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of  a warranty above,  Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.

8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-GA Services“).  You may accept or decline any such trial in Your sole discretion.  Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.  Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms.   NON-GA SERVICES ARE NOT CONSIDERED  ”SERVICES” HEREUNDER AND ARE PROVIDED  ”AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY.   We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.

 

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9. MUTUAL INDEMNIFICATION

9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to  Us all reasonable assistance, at  Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

9.2. Indemnification by You. You shall defend Us against any  claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in  breach  of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of  claim described in this Section.

 

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10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT  ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL  EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY  YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

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11. TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all Services subscriptions granted in accordance with this Agreement have expired or been terminated. We may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your FlashIssue.com account (if you have one), you may simply discontinue using the Service, send us an email message to support(at)flashissue.com or by written notice to Flash Issue, Inc., 245 N Highland Ave NE, Suite 230-273, Atlanta GA 30307-1909.

11.2. Term of Purchased Services Subscriptions. Services subscriptions purchased by You commence on the start date specified in the applicable Order Form or if you are Subscribing through one of our online order form on the date you accept these Terms sand continue for the subscription term specified therein.  Except as otherwise specified in the applicable Order Form, all Services subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 10 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your prospect Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

11.6. Surviving Provisions. Section 65 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.

 

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12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

12.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this:

You are contracting with Flash Issue, Inc.,  a Georgia Corporation.

Notices should be addressed to:
Flash Issue, Inc.

245 N Highland Ave NE, Suite 230-273,

Atlanta GA 30307-1909. USA

Attn: Legal Department

Support(at)flashissue.com

 

The governing law is Georgia and the controlling United States federal law.

The courts having exclusive jurisdiction are Atlanta, GA, U.S.A.

12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

12.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or llitigation in any way arising out of or related to this Agreement.

 

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13. GENERAL PROVISIONS

13.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government  denied-party  list. You shall not permit Users to access or use Services in  a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

13.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If You learn of any violation of the above restriction,  You will use reasonable efforts to promptly notify Our Legal Department (support@flashissue.com).

13.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

13.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.7. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).

13.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to  You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order  Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

 

Parts of this agreement use the a Creative Commons Sharealike license fromWordPress.com.

Website Visitors

Like most website operators and providers of online services, Flash Issue, Inc. collects non-personally-identifying information of the sort that web browsers and servers typically make available, such as the browser type, language preference, referring site, and the date and time of each visitor request. Flash Issue, Inc.’s purpose in collecting non-personally identifying information is to better understand how Flash Issue, Inc.’s visitors use its website. From time to time, Flash Issue, Inc. may release non-personally-identifying information in the aggregate, e.g., by publishing a report on trends in the usage of its website.
Flash Issue, Inc. also collects potentially personally-identifying information like Internet Protocol (IP) addresses. Flash Issue, Inc. does not use such information to identify its visitors, however, and does not disclose such information, other than under the same circumstances that it uses and discloses personally-identifying information, as described below.

Gathering of Personally-Identifying Information

Certain visitors to Flash Issue, Inc.’s websites choose to interact with Flash Issue, Inc. in ways that require Flash Issue, Inc. to gather personally-identifying information. The amount and type of information that Flash Issue, Inc. gathers depends on the nature of the interaction. For example, if you choose to use one of our services or if you use our forums we may ask you to provide a username and email address. In each case, Flash Issue, Inc. collects such information only insofar as is necessary or appropriate to fulfill the purpose of the visitor’s interaction with Flash Issue, Inc.. Flash Issue, Inc. does not disclose personally-identifying information other than as described below. And visitors can always refuse to supply personally-identifying information, with the caveat that it may prevent them from engaging in certain website-related activities or service offerings.

Policy on permission

Our service is permission-based. That means you need permission to send to the people who receive your emails. Flash Issue, Inc.’s  permission policy is part of the Terms of Use agreed to by every Flash Issue subscriber, and conforms to Can-Spam regulations. To send an email to someone using our service, that recipient must be either someone who is a customer, member or subscriber of your business or organization or who has specifically asked to receive your emails by opting in or signing up in some way, or someone who has bought a product or service from you in the past 18 months.

Sender Responsibility

To send mailings using Flash Issue you must follow the guidelines set by the domains you are sending to regarding list management, promotion content, and sending practices. In order to prevent your mailing from being blocked, throttled, or ending up in the spam folder at recipient email providers, you must take all necessary actions to keep your subscriber list sufficiently responsive, follow the email providers’ accepted email coding practices (if you use your own custom email code), and make an effort to avoid sending promotions that are likely to be interpreted by the provider as ‘spam.’ If your mailings do not follow these guidelines they may be considered in violation of the Flash Issue privacy and permission policy.

Use and Disclosure of Your Personal Information

We will use and disclose your Personal Information only as follows:

  1. To promote use, including continued use, of our Services. For example, if you leave your personal information when you visit our Website and do not sign up for any of the Services, we may send you one or more emails asking whether you wish to sign up. If you use any of our Services, and may benefit from using one or more other Services we offer, we may send you an email telling you about the other Service or Services.
  2. To bill and collect sums owed to us. Uses for this purpose include sending you emails, invoices, receipts and notices of delinquency, to alert you if we need a different credit card number, and to otherwise try to collect money owed. We use third parties to handle secure credit card transaction processing and send billing information to such third parties, who maintain all information in confidence, to process your orders and credit card payments. To learn more about what steps we take to safeguard such data, see “V” below.
  3. To send you System Alert Messages to let you know about temporary or permanent changes to our Services including planned outages, new features offered, version updates, point releases, major releases, abuse warnings, changes to our Privacy Policy and possibly other documents and agreements.
  4. To help enforce compliance with our Terms of Use and applicable law including, but not limited to, helping to create white lists and black lists, to develop and test algorithms, heuristics and other methods and tools for detecting violations and to apply those methods and tools. For example, in this regard, although it’s the Member’s responsibility to make sure that the email address of anyone who opts out of receiving Emails from that Member is removed from all of that Member’s Distribution Lists, we try to make that happen automatically.
  5. To provide customer support and obtain feedback.
  6. To protect the rights and safety of us and our employees, Members, owners, officers and others
  7. To meet legal requirements such as complying with court orders and valid subpoenas.
  8. To provide information received hereunder to representatives and advisors such as attorneys and accountants to help us comply with legal and other requirements.
  9. To prosecute and defend a court, arbitration or similar proceeding.
  10. To support and improve the Services we offer including adding features and providing benchmarking and other comparison information regarding.
  11. To communicate with you concerning your account for an informational, as opposed to promotional, purpose.
  12. To transfer your information in the event of the sale of substantially all of the assets of our business to a third-party or in the event of a merger, consolidation or acquisition. However, in such event, any acquirer will be subject to our obligations under this Privacy Policy.
  13. To send you informational and promotional materials that you elect (“opt-in”) to receive.


Aggregated Statistics

Flash Issue, Inc. may collect statistics about the behavior of visitors to its websites and users of its services. However, Flash Issue, Inc. does not disclose personally-identifying information other than as described below.

Protection of Certain Personally-Identifying Information

Flash Issue, Inc. discloses potentially personally-identifying and personally-identifying information only to those of its employees, contractors, and affiliated organizations that (i) need to know that information in order to process it on Flash Issue, Inc.’s behalf or to provide services available at Flash Issue, Inc.’s websites, and (ii) that have agreed not to disclose it to others. For instance, it may be necessary to disclose such information when providing curated content or creating sample email campaigns as part of our service offerings. Some of those employees, contractors and affiliated organizations may be located outside of your home country; by using Flash Issue, Inc.’s websites, you consent to the transfer of such information to them. Flash Issue, Inc. will not rent or sell potentially personally-identifying and personally-identifying information to anyone. Other than to its employees, contractors, and affiliated organizations, as described above, Flash Issue, Inc. discloses potentially personally-identifying and personally-identifying information only when required to do so by law, or when Flash Issue, Inc. believes in good faith that disclosure is reasonably necessary to protect the property or rights of Flash Issue, Inc., third parties, or the public at large. If you are a registered user of a Flash Issue, Inc. service and have supplied your email address, Flash Issue, Inc. may occasionally send you an email to tell you about new features, solicit your feedback, or just keep you up to date with what’s going on with Flash Issue, Inc. and our products. We primarily use our blog to communicate this type of information, so we expect to keep this type of email to a minimum. If you send us a request (for example via a support email or via one of our feedback mechanisms), we reserve the right to publish it in order to help us clarify or respond to your request or to help us support other users. Flash Issue, Inc. takes all measures reasonably necessary to protect against the unauthorized access, use, alteration, or destruction of potentially personally-identifying and personally-identifying information.

Security and Privacy

We employ reasonable technical, administrative and physical safeguards to protect the confidentiality and security of your personal information. We use industry-recognized technical safeguards, such as firewalls, and have adopted and implemented security procedures to protect your information from loss, misuse or unauthorized alteration. When we collect financial account information, such as credit card numbers, we protect its transmission through the use of encryption such as the Secure Socket Layer (SSL) protocol. Notwithstanding our efforts, we cannot guarantee absolute or unqualified protection of this information given the open nature and resulting instability of the Internet and World Wide Web, and we make no representations or warranties as to the effectiveness of our security and assume no liability for security breaches or any failure in the security of your computer equipment, your internet service provider or other networks and communications providers.

Cookies

A cookie is a string of information that a website stores on a visitor’s computer, and that the visitor’s browser provides to the website each time the visitor returns. Flash Issue, Inc. uses cookies to help Flash Issue, Inc. identify and track visitors, their usage of Flash Issue, Inc. website and services, and their website access preferences. Flash Issue, Inc. visitors who do not wish to have cookies placed on their computers should set their browsers to refuse cookies before using Flash Issue, Inc.’s websites, with the drawback that certain features of Flash Issue, Inc.’s websites may not function properly without the aid of cookies.

Privacy Policy Changes

Although most changes are likely to be minor, Flash Issue, Inc. may change its Privacy Policy from time to time, and in Flash Issue, Inc.’s sole discretion. Flash Issue, Inc. encourages visitors to frequently check this page for any changes to its Privacy Policy. Your continued use of this site after any change in this Privacy Policy will constitute your acceptance of such change.

Contacting Flash Issue, Inc. about Privacy

If you have any questions about our privacy statement, the information we have collected from you online, the practices of this site, or your dealings with this web site, please contact us:

FlashIssue, Inc.,
245 N Highland Ave NE, Suite 230-273,
Atlanta GA 30307, USA

or via email at support(at)flashissue.com


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