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A. Campaigner CRM Customer Agreement

1.            Acknowledgment and Acceptance of Agreement

This Customer Agreement (this “Customer Agreement”) is between you (“you”, “your”), as an authorized user of the Services, and Landslide Technologies, Inc. (the “Company”, “we”, “our”, “us”).  For purposes of this Agreement (as defined below), “Services” is defined as any and all services provided by the Company to you either now or in the future, “Software” is defined as any and all software provided to you by the Company in connection with your use of the Services either now or in the future, “Account” is defined as the account(s) through which you access the Services, and “Website” is defined as the Company website(s) through which you placed an order for the Services.

This Customer Agreement, together with the pricing page at http://www.campaignercrm.com/en/crm-software/pricing, the Standard Terms and Conditions in Part B below, operating rules, policies, price schedules or other supplemental documents published from time to time by the Company (collectively, this “Agreement”), constitutes the entire agreement between the Company and you regarding the Services, and supersedes all prior agreements between the Company and you regarding the subject matter of this Agreement. By using the Services, you confirm your acceptance of, and agree to be bound by, this Agreement. If you are using the Services on behalf of your employer, you represent that you are authorized to accept this Agreement on your employer's behalf.

In the event you choose to use the Company’s email marketing services, you agree to be bound by the additional terms and conditions of Addendum I - EMAIL MARKETING END USER SUBSCRIPTION AGREEMENT (“Email Marketing Agreement”), which is incorporated herein by reference.

Unless explicitly stated otherwise, this Agreement will govern the use of any new features that augment or enhance the current Services, including but not limited to the release of new Company Software and Services. In the case of any violation of this Agreement, the Company reserves the right to seek all remedies available by law and in equity.

For Canadian Users: Please note that when you place an order to purchase on the Website, it constitutes an offer to purchase and remains subject to the Company's acceptance. Goods or services listed or described on the Website constitute an invitation to make an offer to purchase.

If you begin, but fail to complete the sign up process for Services, the Company may contact you in an effort to help you sign up for the Services or another service provided by the Company. You hereby authorize the Company to make such contact, even if you ultimately determine not to sign up for any of the services provided by the Company.

1.            Definitions

Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in this Section 1:

  • “Documentation” shall mean written documents or other materials relating to use of the Software or the Services generally made available by the Company to you. 
  •  “iO Channel” shall mean a service offered by the Company to provide a communication channel between you and a third-party prospect for your products or services.
  • “Order Form” shall mean the ordering documents you completed at the time you purchased the Software. All Order Forms are incorporated herein by reference.
  • “Users” mean those individuals who are authorized by you to use the Software, for whom Subscription Fees have been paid to the Company, and who have the right to access the output resulting from use of the Software.

2.            License Grant

               a.            Trial License.  Beginning on the date you click “I Agree” to register for the right to use the Software for a trial period  and continuing thereafter until the earlier of (i) expiration of a 30-day period, (ii) your registration for a Limited License (as defined below), and (iii) your purchase of a Full License (as defined below) (the “Trial Period”), and subject to the terms and conditions of this Agreement, the Company hereby grants to you a non-exclusive, non-transferable, royalty-free license (without the right to sub-license) to access (and have Users access) the object code form of the Software via the Services (the “Trial License”). Additional terms and conditions may appear on the trial registration web page and shall be deemed incorporated into this Agreement by reference. 

               b.            Limited License.  In the event you register for the right to use the Software on a limited basis with limited functionality of the Service and only one (1) User allowed per Account, as set forth http://www.campaignercrm.com/en/trial/free.php, and subject to the terms and conditions of this Agreement, the Company hereby grants to you a non-exclusive, non-transferable, royalty-free license (without the right to sub-license) to access (and have Users access) the object code form of the Software via the Services (the “Limited License”). Additional terms and conditions may appear on the registration web page and shall be deemed incorporated into this Agreement by reference.  If you register for a Limited License, you shall no longer be eligible to register for a Trial License at any time in the future.      

               c.            Full License. In the event you purchase the right to use the Software by clicking “Buy Now”, executing one or more Order Form provided the Company,  or otherwise purchasing such right, and subject to the terms and conditions of this Agreement, the Company hereby grants to you a non-exclusive, non-transferable, royalty-free license (without the right to sub-license) to access (and have Users access) the object code form of the Software via the Services (the “Full License” and together with the Trial License and the Limited License, each a “License”). All rights not expressly granted pursuant to this Agreement are reserved by the Company. 

               d.            Restrictions. You shall not: (i) reverse engineer, decompile, translate, disassemble, or attempt to discover the source code for all or any portion of the Software; (ii) license, distribute, or disclose the Software, in whole or in part, to any third party, except to Users and their sales prospects that open an iO Channel; (iii) use the Services for any purpose other than using your own data in accordance with the terms of this Agreement; (iv) use the Services or the Software for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose; or (e) access the Services or the Software in order to build competitive product(s) or service(s).  For the avoidance of doubt, Subscription Fees (as defined below) paid for Users are for such designated Users and may not be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Software.

               e.            Usage Limitations. The Services may be subject to other limitations, such as, for example, limits on the number of Users, disk storage space or on the number of calls an application is permitted to make against the Company’s API.   Please refer to the pricing page at http://www.campaignercrm.com/en/crm-software/pricing for details.

3.            Customer’s Obligations

               a.            General. You shall reasonably cooperate with the Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required by us, and taking such other actions as we may reasonably request. Without limiting the generality of the foregoing, you shall determine, and shall have sole liability for, the substantive content and sales processes you and any Users desire to post to the Services. You shall also cooperate with the Company in establishing a password or other procedures for verifying that only Users and their sales prospects that open iO Channels access the Services. You shall (i) be responsible for each Users’ compliance with the terms of this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access or use of the Services and the Software, and (iii) use the Services and Software in accordance with the Documentation, the terms of this Agreement, and any applicable laws and governmental regulations. You shall not sell, resell, rent or lease the Software or the Services, or interfere with or disrupt the integrity or performance of the Services or the Software or third-party data contained therein.

               b.            Primary Contacts. You shall designate an employee liaison to serve as a primary business contact (the “Primary Contact”), one that will serve as administrator to be responsible for providing updated content and processes in the Services, and one or more employee liaisons who will be responsible for first tier support of the Services (i.e., contacting the Company’s customer support, and answering questions concerning the functionality of the Software for Users). You may change the individual(s) designated as primary contacts under this section at any time by providing written notice to the Company in accordance with the terms of this Agreement. 

               c.            Posted Material.  You agree that you shall be solely responsible for the content of any material posted to the Services by you, any Users, or your or any Users’ sales prospects, and that, upon termination or expiration of the Term (as defined below), you and any Users will not have access to any content posted to the Services. You agree to back up all such content. You shall not (and shall ensure that Users will not) use the Services or the Software to store or transmit any viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.  

ANY CONTENT POSTED TO THE SERVICES DURING THE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE THE RIGHT TO USE THE SOFTWARE UNDER A FULL LICENSE PRIOR TO EXPIRATION OF THE TRIAL PERIOD.

4.            Company’s Obligations

               a.            Hours of Availability.  The Company shall use commercially reasonable efforts to make the Services available twenty-four (24) hours per day, except (i) for purposes of scheduled maintenance, (ii) for purposes of emergency maintenance work at any time as deemed appropriate by the Company, or (iii) as a result of acts of God, or acts of government, including, but not limited to fire, flood, civil unrest, acts of terror, strikes, internet service provider failure, or any other occurrence not reasonably within the Company’s control.  Notwithstanding the foregoing, the Company reserves the right to suspend your access to the Services in the event that you materially fail to fulfill your obligations under this Agreement.

               b.            Support.  The Company operates a help desk between the hours of 8:00 a.m. and 8:00 p.m. EST, Monday through Friday, exclusive of the Company’s scheduled holidays, which are published on the Website. The help desk will accept inquiries by telephone or electronic mail solely from those Users designated by you to make inquiries. The Company will use its best efforts to respond to such inquiries within 24 hours after receipt.

5.            Term and Termination

               a.            In the event you purchase the right to use the Software under a Full License, the initial term of this Agreement shall commence upon you clicking “Buy Now” and, depending on the plan you select, shall continue for either one (1) month or one (1) year (as applicable, the “Initial Term”).  This Agreement shall automatically renew for successive renewal terms equal in length to the Initial Term (each a “Renewal Term”), unless either party gives the other party written notice (including email), delivered in accordance with Section 7, of its intention to terminate not less than thirty (30) days prior to expiration of the Initial Term or then current Renewal Term, as applicable.  If you terminate before the renewal date, you will still have access to the Services through and including the renewal date, and will still be obligated to pay the Subscription Fees for the remainder of the Term.  The Initial Term, together with any Renewal Term, constitutes the “Term” of this Agreement.

               b.            Either 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. Upon any termination for cause by the Company, you shall pay any unpaid fees covering the remainder of the Term. In no event shall any termination relieve you of the obligation to pay any fees payable to the Company for the period prior to the effective date of termination.

               c.            The Company may terminate or suspend the Services and this Agreement at any time, with or without cause, upon notice.  The Company reserves the right to do so without prior notice, provided that the Company will attempt to confirm such termination or suspension by subsequent notice.

               d.            Upon the expiration or sooner termination of this Agreement, all rights granted to you pursuant to Sections 2.a., 2.b., and 2.c of this Agreement shall automatically and immediately cease. The parties’ payment obligations which accrue prior to expiration or termination of this Agreement and the Company’s disclaimer of warranties in this Agreement shall survive expiration or termination of this Agreement for any reason.

6.            Fees and Payment for Full License

               In consideration of the Company providing access to the Services during the Term, you shall pay to the Company (if applicable) (a) the Monthly Access Fees, (b) the Buyer Web (iO Channel) Fees, (c) the Implementation Services Fees, and (d) the Support Fees, as each is described on the Website (collectively referred to herein as the “Subscription Fees”). The Subscription Fees are charged as recurring monthly fees on the same day of each month during the Term, and will automatically renew for each Renewal Term. If you do not want the Subscription Fees to renew, you must cancel your Account by providing written notice to the Company no less than thirty (30) days prior to the expiration of the Initial Term or then current Renewal Term, as applicable.  If you cancel your Account before your applicable renewal date, you will still have access to the Services through and including your renewal date, and will still be obligated to pay the Subscription Fees for the remainder of the Term.

ALL SUBSCRIPTION FEES ARE BASED ON SERVICES PURCHASED, NOT ON ACTUAL USAGE.

7.            Notices.

Except as otherwise specified in this Agreement, all notices and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after dispatch by certified mail, postage prepaid; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by e-mail with a “read receipt” requested.  Notices to you shall be addressed to the employee liaison designated as your Primary Contact in accordance with Section 3.b. of this Agreement. Notices to the Company shall be addressed as follows (or sent as follows):

Landslide Technologies, Inc.
2 Gurdwara Road, 3rd Floor
Ottawa, Ontario
Canada
K2E 1A2
Email:  legal@campaigner.com


ADDENDUM I - EMAIL MARKETING END USER SUBSCRIPTION AGREEMENT

This Email Marketing End User Subscription Agreement (this “Email Marketing Agreement”) is a binding and enforceable legal agreement between you and the Company and is an addendum to the Customer Agreement you executed, which remains in effect.

1.            Definitions

Capitalized terms not otherwise defined in this Email Marketing Agreement or the Customer Agreement shall have the meanings set forth in this Section 1:

  • “CASL” means Canada’s Anti-Spam Legislation and all rules, regulations and guidelines promulgated thereunder.
  • The “CAN-SPAM Act” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and all rules, regulations and guidelines promulgated thereunder.
  • “Customer Data” means all electronic data or information submitted by you to the Email Services.
  • “Email Services” means the provision of electronic access to one-to-one direct marketing software over a computer network and related technical support services.
  • “Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers.
  • A “Permission Based List” means a list of recipients used in connection with your use of the Email Services that only includes parties that have consented to receive correspondence from you.
  • The “UIGE Act” means the Unlawful Internet Gambling Enforcement Act of 2006 and all rules, regulations and guidelines promulgated thereunder.

2.            Use

You may use the Email Services only in, and for, your own internal purposes and business operations. You may not use the Email Services as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the email marketing software accessed by you hereunder, in whole or in part, is granted except as expressly provided by this Email Marketing Agreement. Neither you nor any of your affiliates shall reverse engineer, decompile or disassemble the Email Services. Nothing in this Email Marketing Agreement will entitle you or any of your affiliates to access or use the source code of the Email Services.

3.            Your Responsibilities

You are responsible for all activity that occurs within your Account(s). You shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Email Services, and notify the Company promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Email Services, including without limitation CASL, the CAN-SPAM Act and the UIGE Act. You shall not upload to, or store within, the Email Services (and Customer Data shall not contain) any Non-Public Personal Information. You understand and acknowledge that the Company, in its sole discretion, may refuse to distribute: (i) any message content that the Company reasonably believes is defamatory, infringing, or otherwise unlawful; and (ii) any email to any recipient that the Company reasonably believes has not granted permission (or otherwise “opted-in”) to you to send such message(s) or that the Company reasonably believes is unlawful.

4.            Confidentiality

You acknowledge that the Email Services and any other information provided to you by the Company incorporate confidential and proprietary information developed by, acquired by, or licensed to the Company (“Confidential Information”). You will take (and will cause your affiliates to take) all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. Neither you nor any of your affiliates will make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of your employees or consultants who require access for your authorized use of the Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. You acknowledge that any unauthorized use or disclosure by you or any of your affiliates of the Confidential Information may cause irreparable damage to the Company. If the Company becomes aware of your breach or threatened breach of this Section 4, the Company may suspend any and all rights granted to you under this Agreement and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to the Company.

5.            Email, Permission Practices, Image Hosting and Prohibited Content

               a.            Subscriber Opt Out. Every email message sent in connection with the Email Services must contain an “unsubscribe” link that allows subscribers to remove themselves from your mailing list. The link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to the Company. You acknowledge and agree that you will not remove, disable or attempt to remove or disable the link. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission, and update the email addresses to which messages are sent through your Account. Under CASL and the CAN-SPAM Act, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Account and this Email Marketing Agreement.

               b.            Permission Practices. You agree to import, access, or otherwise use only Permission Based Lists in connection with your use of the Email Services. You hereby covenant that you shall not use any other lists in connection with your use of the Email Services. If you have used a 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 to that recipient. Without limiting the foregoing, you agree that you shall not utilize the Email Services 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, publicly available press or media addresses or spam or unsolicited email addresses. You cannot copy a Company template or any other features or functionality from the Email Services and use them for any purpose other than sending email messages from the Email Services. This restriction also applies to customized templates prepared by the Company’s professional services group.  Emails that you send through the Email Services may generate spam complaints from recipients. As a matter of privacy, the Company cannot share with you the email addresses of those who complain about your emails. You are responsible for ensuring that your emails do not generate a number of spam complaints in excess of industry norms. The Company, 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 Email Marketing Agreement. The Company will terminate your use of its Email Services if the Company determines that your level of spam complaints is higher than industry norms (as determined by the Company in its sole discretion).

               c.            Footers. For every email message sent in connection with the Email Services, you acknowledge and agree that the Company may add an identifying footer stating “Email Marketing by CampaignerCRM”, “Powered by CampaignerCRM”, “Delivered by CampaignerCRM” or a similar message.

               d.            Documents and Images. Documents and images hosted by the Company on the Company’s controlled servers may only be used in connection with the Email Services and for no other purpose whatsoever. To the extent you use images provided by the Company, the Company hereby grants to you a limited, non-exclusive, non-transferable right to use the images in an unaltered state solely in connection with your use of the Email Services.

               e.            Prohibited Content. The Company prohibits the use of the Email Services or the Website by any person or entity that:

(i)           Provides, sells or offers to sell any of the following materials or content (or services related to the same): pornography or illicitly pornographic sexual material, including but not limited to magazines, video and software; escort services; dating services; adult “swinger” promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.

(ii)          Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.

(iii)        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.

(iv)         Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or posts any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.

(v)          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).

(vi)         Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.

(vii)       Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.

(viii)      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.

(ix)         Engages in any libelous, defamatory, scandalous, threatening, or harassing activity.

(x)          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.

(xi)         Markets to third party voter registration lists.

(xii)       Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.

               e.            Right to Disable Access or Remove Content. The Company, at its sole discretion, may immediately disable your access to the Email Services or remove all or a portion of your content, without refund, if the Company believes in its sole discretion that you have violated any of the policies listed above or this Email Marketing Agreement.

6.            Indemnification

Notwithstanding anything in this Agreement, including the Standard Terms and Conditions, to the contrary, you shall defend, indemnify, and hold the Company and its licensors harmless against any loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding alleging (a) Customer Data infringes the intellectual property rights of a third party, (b) the Company’s or its licensors’ use of any Customer Data, as permitted by this Email Marketing Agreement, has otherwise harmed a third party, (c) your use of the Email Services other than in compliance with the terms of this Email Marketing Agreement, or (d) your violation or alleged violation of any applicable law, including but not limited to CASL, the CAN-SPAM Act and the UIGE Act.

7.            Representations and Warranties

You represent and warrant that:

               a.            The Email Services will be subject to monthly subscription fees if you have completed your Trial Period and you have exceeded the free subscriber or contact limit.  Such subscription fees will be posted on the Website, and may be included at the Company’s sole discretion in the standard Subscription Fee. The Email Services may also be subject to per message and certain overage charges. For more information on fees, refer to the Website.

               b.            The Email Services may not be used for the sending of unsolicited email (sometimes called “spam”).

               c.            Every recipient to whom a message is sent via the Email Services shall have given you consent (“opted-in”) to send such message.

               d.            You shall not use the Email Services in a manner that violates any international, federal, state, or local law or regulation relating to individual privacy or the distribution of email and other digital one-to-one communications, including but not limited to CASL and the CAN-SPAM Act.

               e.            You engage in no activity in violation of the UIGE Act nor shall you use the Email Services to advertise or otherwise promote any activities that would violate the UIGE Act.

               f.             The Email Services may not be used for hosting content, including images and documents, that infringes on the intellectual property rights of others, including copyright, trademark and patent infringement, or that includes any obscene or libelous material or other material that violates any applicable law or regulation.

               g.            You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Email Services.

               h.            You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Email Services, and all Permission Based Lists must comply with CASL. Mere agreement of a person or entity to participate in a survey or register for an event is not consent to receive correspondence from you unrelated to such survey or event. For respondents to your surveys or registrants to your events, consent to receive other correspondence from you is evidenced by the respondent or registrant opting into the “Join My Mailing List” link in the course of responding to your survey or registering for your event. You hereby covenant that you shall not use any other lists in connection with your use of the Email Services other than Permission Based Lists.

               i.            You acknowledge and agree that not all email messages sent through use of the Email Services will be received by their intended recipients.

               j.             You will comply with the restrictions on content of email messages and activities using the Email Services as set forth or referenced in this Email Marketing Agreement.

               k.            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 the Email Services.

               l.             You agree that the “from” line of any email message sent by you using the Email Services will accurately and in a non-deceptive manner identify your organization, your product or your service.

               m.           You agree that the “subject” line of any email message sent by you using the Email Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message.

               n.            You agree to include in any email message sent by you using the Email Services your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.

               o.            You agree that in any email message sent by you using the Email Services you will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.

               p.            In your use of the Email Services, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.

               q.            You agree to not interfere with or disrupt the Website or any related Company websites or servers or networks connected to the Website or any related Company websites.

               r.            If you are accessing or using the Email Services through a third party service, you will abide by this Agreement 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 this Agreement.

8.            Outage Policy

YOU ACKNOWLEDGE AND UNDERSTAND THAT THE COMPANY DOES NOT WARRANT THAT THE EMAIL SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT THE COMPANY MAY OCCASIONALLY EXPERIENCE HARD OUTAGES DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN THE COMPANY’S CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.

9.            Customer Marks

The Company and its applicable service provider(s) may use your trademarks and trade names (“Marks”) in connection with the authorized provision of the Email Services.


B.           STANDARD TERMS AND CONDITIONS

Your use of the Services is subject to these Standard Terms and Conditions (“Terms”), which are incorporated by reference to your applicable Customer Agreement.  In the event of a conflict between these Terms and your Customer Agreement, the terms of these Terms shall take precedence in relation to that Service and Account.

1.            Customer Representation

You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including, without limitation, minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.

If you sign up on behalf of an entity, you agree and acknowledge that you have authority to bind the entity to this Agreement. You also agree and acknowledge that you are responsible for all individual users who access and/or use the Services through your Account. Accordingly, the terms, conditions, restrictions and obligations of this Agreement (excluding your payment obligations to the Company) shall be construed to also apply to all users who utilize your Account and you shall be liable for any breach hereof by any user of your Account.

2.            Privacy

Information collected by the Company about you will be treated in accordance with our privacy policy (“Privacy Policy”). This Privacy Policy is available at http://www.campaignercrm.com/en/company/privacy.  If the Company decides to change its privacy practices, the Company will post a revised Privacy Policy at this location so you are always aware of what information the Company collects, how the Company uses it and under what circumstances, if any, the Company discloses it. The Company will use information in accordance with the Privacy Policy in effect at the time the information was collected. If the Company makes any material changes to its privacy practices or material changes to how your information is treated, the Company will notify you via email. You will have a choice as to whether or not the Company uses your information in this different manner. However, if you have deleted/deactivated the applicable Account, then you will not be contacted, nor will your personal information be used in this new manner.

3.            Termination or Suspension by the Company

The Company may terminate or suspend any Account at any time, with or without cause, upon notice. The Company reserves the right to do so without prior notice, provided that the Company will attempt to confirm such termination or suspension by subsequent notice. In addition, the Company reserves the right to suspend or terminate any Account without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company. The Company reserves the right to limit use of the Services or to terminate any Account if we believe unreasonable usage has occurred on such account or if the Services are used in a manner that is not permitted by this Agreement. If an Account is suspended or terminated and the Company later reactivates the Account, the Company may charge you a re-activation fee of $25. The Company also reserves the right to take any action with respect to the Services that it deems necessary or appropriate in its sole discretion if the Company believes you or your information may create liability for the Company, compromise or disrupt the Services for you or others or cause the Company to lose (in whole or in part) the services of the Company's suppliers.

4.            Customer Conduct/Responsibilities

               a.            General.  You must (i) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access your Account(s) and use the Services; (ii) maintain any security of your user identification, and other confidential information relating to your Account(s) and; (iii) be responsible for all charges resulting from use of your Account(s), including unauthorized use prior to your notifying the Company of such use and taking steps to prevent its further occurrence.

               b.            User Account, Password, and Security.  As part of your registration process, you will be required to provide a valid email address and select a password. You are entirely responsible for notifying the Company of any change in your email address and for failing to maintain the confidentiality of your password and Account information. Furthermore, you are entirely responsible for any and all activities that occur under your Account(s). You agree to immediately notify the Company of any unauthorized use of an Account or any other breach of security known to you.

               c.            Content of Transmissions.  You are fully responsible for the contents of your transmissions through the Services. The Company simply acts as a passive conduit for you to send and receive information of your own choosing.  However, the Company reserves the right to take any action with respect to the Services that the Company deems necessary or appropriate in its sole discretion, if the Company believes you or your information may create liability for the Company, compromise or disrupt the Services for you or other customers, or cause the Company to lose (in whole or in part) the services of the Company’s ISPs or other suppliers.

               d.            Prohibited Conduct.  Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws or false advertising). You agree: (i) to comply with all applicable laws regarding the transmission of technical data exported from any country through the Services; (ii) not to use the Services for illegal purposes; (iii) not to interfere or disrupt networks connected to the Services; (iv) to comply with all regulations, policies and procedures of networks connected to the Services; (v) not to use the Services to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (vi) not to transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind of nature; (vii) not to use or reference the Services for chain letters, junk fax or junk mail, spamming or any other use of distribution lists to any person who has not given specific permission to be included in such a process; (viii) not to use the Services to attempt to gain unauthorized access to other computer systems; and (ix) not to interfere with another's use and enjoyment of the Services or similar services; and (x) not to use the Services to transmit misleading or inaccurate caller identification information. You may not use the Services with the intent to defraud, cause harm, or wrongfully obtain anything of value. You further agree not to use the Services to store (1) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191), or (2) any other type of information that imposes independent obligations upon the Company.

               e.            Spam.  If you transmit or are otherwise connected with any email, fax or voice “spam” or other unsolicited marketing message, you agree to pay the Company its actual damages if those damages can be reasonably calculated. If actual damages cannot be reasonably calculated, you agree to pay the Company liquidated damages of ten dollars (US $10.00) for each piece of email “spam” or unsolicited email marketing message transmitted from or otherwise connected with your Account(s) and $500 for each piece of fax “spam” or unsolicited fax marketing message transmitted from or otherwise connected with your Account(s). You acknowledge that if actual damages cannot be reasonably calculated, these liquidated damages are a reasonable estimation of such damages and are not a penalty. You also agree that the Company may charge such damages to your credit card or other payment method you use to pay for the Services.

5.            Modification of Terms or Customer Agreement

The Company may automatically amend these Terms and any Customer Agreement at any time by (a) posting revised Terms or a revised Customer Agreement at this website, or (b) sending information regarding the amendment to the email address you provide to the Company.  YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and the Company.

6.            Modifications to Services

The Company reserves the right to modify or discontinue any of the Services with or without notice to you. The Company shall not be liable to you or any third party should the Company exercise its right to modify or discontinue the Services.

7.            General Billing Terms

You agree to pay all charges for your use of the Services at the prices then in effect for your plan. 

               a.              VAT.  The Company reserves the right to charge value-added taxes ("VAT"), sales or other taxes on the Services as it deems appropriate.

               b.              Changes in Pricing.  The Company reserves the right to change prices or institute new charges for access to or use of the Services. All changes will be posted by the Company on the Website and you are responsible for regularly reviewing such pricing information to obtain timely notice of such changes. Continued use of the Services or non-termination of your account after changes are posted constitutes your acceptance of the prices as modified by the posted changes.

               c.              Viewing your Account.  To view your current account balance, along with billing details and any accumulated charges, please click on “Billing” after logging into the Website.

               d.              Payment Terms. Payment of each Account balance is due monthly or annually, in accordance with your payment plan for the Account, in the currency in which the Account is billed, and must be made by the credit or debit card (hereinafter "designated card" will refer to both credit and debit cards) designated by you for use and transactions or through other methods, including monthly invoicing (if you meet certain criteria) or pre-payment by check or credit card. If an Account is a qualified business account and is approved by the Company for corporate billing, charges will be accumulated, identified by customer identification number and invoiced on a monthly basis.

               e.              Credit/Debit Cards

               i.               Payment and Authorization.  If you chose to pay an Account balance by designated card, each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that the Company is authorized to charge your designated card. If the designated card payment is not received by the Company from the card issuer (or its agent or affiliate), you agree to pay all amounts due upon demand by Company. Your card issuer's agreement governs your use of your designated card, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You are responsible for overdraft fees and all other fees charged by your card issuer. You agree that the Company may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more charges during or at the end of each cycle, and that the Company may delay obtaining authorization from your card issuer until submission of the accumulated charges. This means that accumulated charges may appear on the statement you receive from your card issuer. In order to avoid interruptions in the Services caused by rejected designated card charges, the Company reserves the right to update your designated card details (such as expiration dates or new card numbers) where this is not prohibited by law. YOU UNDERSTAND AND AGREE THAT THE COMPANY IS ENTITLED TO OBTAIN SUCH UPDATED CARD DETAILS, STORE THEM AND USE THEM TO BILL CHARGES. To ensure continued access to the Service, you may provide other methods of payment (i.e. a second or third credit card) which will be charged if the primary payment method is declined.

               ii.                Changes in Account Information.  You must promptly notify the Company of changes to: (a) the account number or expiration date of your designated card; (b) your billing address; and (c) the name of each minor whom you have authorized to use your Account. You must also promptly notify the Company if your designated card is canceled (e.g., for loss or theft).

               f.                 Free Trial Periods.  If you subscribe for Services pursuant to a special offer granting you a free-trial period, your activation fee (if any) and initial monthly service fee may be PRE-AUTHORIZED AGAINST YOUR DESIGNATED CARD LIMIT (meaning the amounts pre-authorized will not be considered available credit or debit funds in such account) and will be immediately charged to your designated card, without further authorization from you, upon the expiration of such free trial period, unless the Services are terminated in accordance with the Company's cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion. Such termination will not affect charges submitted before the Company reasonably could act on your notice.  If you cancel before the end of the free-trial period, you will only be responsible for any overages or amounts not included in the free trial.  If you cancel after the free trial period, you will be charged for the full month in which you cancelled.   Additional fees will apply for usage in excess of any free usage (e.g., fax pages or call minutes) included in your free trial offer or from any usage incurred from making any faxes or voice calls outside the United States during your free trial offer will apply and will be immediately charged to your designated card, without further authorization from you.

               g.                Fees Non-Refundable.  All fees for Services are payable in advance and are COMPLETELY NON-REFUNDABLE. You agree that for monthly subscription plans the Company may submit charges for your monthly Service fee each month, and for annual subscription plans the Company may submit charges for your annual Service fee annually and additional usage charges monthly, in each case, without further authorization from you, until you provide prior notice (in accordance with the Company's verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice.

               h.                Pre-Paid Discounts.  If you subscribed for Services for a fixed number of months (e.g., an annual plan or multi-month plan), your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your pre-paid fee for the designated period immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT and will be immediately charged to your credit or debit card, without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Company's cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization. Such notice will not affect charges submitted before the Company reasonably could act on your notice.

               i.                 Credits/Gift Balances.  The Company may, from time to time, award you a gift balance, which is a non-refundable credit applicable toward usage fees only. Gift balances have no cash value and will expire on the earlier of (i) termination of the applicable Account or (ii) 30 days after they are issued, and are subject to any additional terms associated with the credit offer. The Company reserves the right to limit gift balances to a maximum of $5 per customer. In addition, the Company may offer other incentives or issue other credits from time to time, each of which is subject to the specific terms of the applicable offer or credit. The Company reserves the right to modify these credits or offers at any time with or without notice.

8.            Disclaimer of Warranties

ALL COMPANY SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND NEITHER THE COMPANY NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS (“PROVIDERS”) MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. THE COMPANY AND ITS PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY OR COMPLETENESS. NEITHER THE COMPANY NOR ITS PROVIDERS WARRANT THAT ACCESS TO OR USE OF THE COMPANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF THE COMPANY, IN EVALUATING THE SERVICES OR SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.

9.            Limitation of Liability

YOUR USE OF THE COMPANY SOFTWARE AND SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, UPLOADING AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING COMPANY SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM THE COMPANY, OR LOSS RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR FILES UPLOADED, HOSTED OR TRANSMITTED VIA THE LARGE FILE SEND FEATURE (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF ITS PROVIDERS WILL BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF YOUR USE OF OR INABILITY TO USE ANY COMPANY SOFTWARE OR SERVICES.  THE COMPANY WILL NOT ASSUME LIABILITY UNDER ANY APPLICABLE LAW OR REGULATION FOR CLAIMS CONCERNING UNSOLICITED FAX, EMAIL OR VOICE MESSAGES SENT BY YOU OR OTHERS UNDER YOUR ACCOUNT.

IN NO EVENT SHALL THE COMPANY OR ITS PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

NEITHER THE COMPANY NOR ANY OF ITS PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES WHETHER WITHIN OR OUTSIDE THE COMPANY'S OR ANY SUCH PROVIDER'S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF SERVICES OR MISDIRECTION OF ANY TRANSMISSION SENT THROUGH THE SERVICES. YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO THE COMPANY SOFTWARE AND SERVICES AS SET FORTH HEREIN, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY OR ANY SUCH PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND ITS PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE COMPANY SERVICES AND SOFTWARE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE COMPANY SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S. $500.00. YOU HEREBY RELEASE THE COMPANY AND EACH OF ITS SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.

10.          Indemnification

You agree to indemnify and hold harmless the Company and each of its Providers from and against any and all liabilities, expenses (including attorneys' fees) and damages arising out of claims based upon use of your Account(s), including any violation of this Agreement by you or any other person using your Account(s); any claim of libel, defamation, violation of rights of privacy or publicity; any loss of service by other customers; any infringement of intellectual property or other rights of any third parties; or any violation of any applicable laws or regulations.

11.          Ownership

All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Services are wholly owned by the Company and/or its Providers except where expressly stated otherwise. You may not use the Company's trademarks, trade names, patents, copyrights or other intellectual property rights without the Company's prior written permission.

12.          No Resale

Your right to use the Services is personal to you. You may be either an individual or an  entity, but you agree not to resell, lease or otherwise permit the use of the Services for a fee.

13.          Notices; Consent

Notices given by the Company to you will be given by email, by a general posting on the Website or by conventional mail. Notices given by you to the Company must be given by email or by conventional mail (subject, however, to the Company's verification procedures, which may include the requirement that you contact the Company by phone to confirm that any such notice was in fact sent by you). Notices to the Company by conventional mail must be sent to  2 Gurdwara Road, 3rd floor, Ottawa, Ontario Canada K2E 1A2, USA. In any matter requiring the Company's prior consent, such consent will be considered given only if made in writing by an authorized representative of the Company.

14.          Governing Law; Jurisdiction

THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS AGREEMENT AND YOUR USE OF COMPANY SOFTWARE AND SERVICES. THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. YOU EXPRESSLY AGREE THAT THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF COMPANY SOFTWARE OR SERVICES RESIDES IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA OR A SUPERIOR COURT FOR THE STATE OF CALIFORNIA LOCATED IN LOS ANGELES COUNTY, CITY OF LOS ANGELES.

15.          Agreement to Arbitrate All Disputes

               a.            You and the Company agree that all disputes and claims between us shall be settled by binding arbitration instead of in courts of general jurisdiction.  This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to any dispute, claim or controversy arising out of or relating in any way to the Services, the Website, this Agreement or any aspect of the relationship between us.  You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action.  Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf.  This arbitration provision shall survive termination of this Agreement and the termination of your subscription.

               b.            A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be addressed to :  2 Gurdwara Road, 3rd floor, Ottawa, Ontario Canada K2E 1A2  (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after the Company receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000.

               c.            The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.  Unless the Company and you agree otherwise, any arbitration hearings will take place by video or telephone conference.  If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.  The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement.

               d.            We may make a written settlement offer anytime before an arbitrator is selected.  If the arbitrator issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or if the Company did not make a settlement offer before an arbitrator was selected), then the Company will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.

               e.            YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.

16.          General Provisions

               a.                Assignment.  You may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void.

               b.                Severability/Waiver.  If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Company's failure to act with respect to a breach by you or others does not waive the Company's right to act with respect to subsequent or similar breaches.

               c.                Entire Agreement.  This Agreement, along with any applicable Additional Terms, sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof.

               d.                Force Majeure.  The Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company's reasonable control.

               e.                Parental Controls.  Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors, although such technology may not be effective with regard to receipt of email messages as provided as part of the Services.

               f.                 Legal Notices; Consumer Rights.  Under California Civil Code Section 1789.3, California Customers are entitled to the following specific consumer rights information:

               (i)           Pricing Information. Current rates for using the Service may be obtained by calling Customer Service. The Company reserves the right to change recurring or usage fees and surcharges or to institute new fees at any time, as provided for in Sections 5 and 6 above.

               (ii)          Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.