Terms and Conditions
General terms are for website partners and emailer resellers. All services paid for or hire as a service are non-refundable. If a refund is request it can be exchanged for other services after reviewed. Not all items purchased have the right to do or obtain something else that would allow any exchange of services. All request will be reviewed but there will be no money refund for services ordered or hired for.
The Site provides an interactive online service operated by Shelly's Smart Shopper. on the World Wide Web of the Internet (the "Web"), consisting of information services, content and transaction capabilities facilitated through Shelly's Smart Shopper, affiliates of Shelly's Smart Shopper or customers and partners within our alliances.
This Agreement sets forth the terms and conditions that apply to the use of this Site by the End User. By using this Site (other than to read this Agreement for the first time), End User agrees to comply with all of the terms and conditions hereof. The right to use this Site is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User's password(s), if any. End User acknowledges that although the Internet is often a secure environment, sometimes there are interruptions in service or events that are beyond the control of Shelly's Smart Shopper and they shall not be responsible for any data lost while transmitting information on the Internet. While it is Shelly's Smart Shopper's objective is to make the Site accessible 24 hours per day, 7 days per week, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of Shelly's Smart Shopper, access to the Site may be interrupted, suspended or terminated from time to time.
Shelly's Smart Shopper shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability and equipment needed for access or use. Further, Shelly's Smart Shopper may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
2. Modified Terms.
End User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of this Site and all charges related thereto. Shelly's Smart Shopper shall not be liable for any damages to the End User's equipment resulting from the use of this Site.
4. End User Conduct.
The foregoing provisions of this Section 4 apply equally to and are for the benefit of Shelly's Smart Shopper, its subsidiaries, affiliates, Merchants and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
5. Copyright and Trademarks.
Everything located on or in this Site, including the Microsites, is the exclusive property of Shelly's Smart Shopper. or used with express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THIS SITE OR ANY OF THE MICROSITES WITHOUT THE EXPRESS WRITTEN PERMISSION OF Shelly's Smart Shopper. IS STRICTLY PROHIBITED. Any violation of this policy may result in a copyright, trademark or other intellectual property right infringement that may subject End User to civil and/or criminal penalties.
This Site and any Microsites contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States copyright laws. Shelly's Smart Shopper owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. End User may download, print, and/or save copyrighted material for End User's personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of Shelly's Smart Shopper or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. End User acknowledges that he/she/it does not acquire any ownership rights by downloading copyrighted material. Trademarks that are located within or on the Site or a Microsite otherwise owned or operated in conjunction with Shelly's Smart Shopper shall not be deemed to be in the public domain but rather the exclusive property of Shelly's Smart Shopper, unless such site is under license from the Trademark owner thereof, in which case such license is for the exclusive benefit and use of Shelly's Smart Shopper, unless otherwise stated.
End User shall not upload, post, or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. Shelly's Smart Shopper does not have any express burden or responsibility to provide End User with indications, markings or anything else that may aid End User in determining whether the material in question is copyrighted or trademarked. End User shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of this Site or any Microsite, End User warrants that the owner of such material has expressly granted Shelly's Smart Shopper the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other end user to access, view, store, or reproduce the material for that End User's personal use. End User hereby grants Shelly's Smart Shopper the right to edit, copy, publish and distribute any material made available on this Site or any Microsite by End User.
The foregoing provisions of Section (5) apply equally to and are for the benefit of Shelly's Smart Shopper its subsidiaries, affiliates, Merchants and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Copyright Policy.
Shelly's Smart Shopper reserves the right to terminate its agreement with any End User who repeatedly infringes third-party copyright rights upon prompt notification to Shelly's Smart Shopper by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Site or any Microsite in a way that constitutes copyright infringement, you shall provide Shelly's Smart Shopper with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location on the Site or any Microsite of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for Shelly's Smart Shopper 's Copyright Agent for notice of claims of copyright infringement is as follows:
7. Disclaimer of Warranty.
END USER EXPRESSLY AGREES THAT USE OF THIS SITE AND THE MICROSITES IS AT END USER'S SOLE RISK. NEITHER Shelly's Smart Shopper, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE OR ANY MICROSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS SITE, OR ANY MICROSITE, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR VOUCHERS PROVIDED THROUGH THIS SITE OR THE MICROSITES.
THIS SITE AND THE MICROSITES ARE MADE ACCESSIBLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. Shelly's Smart Shopper HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability.
IN NO EVENT SHALL Shelly's Smart Shopper BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN NO EVENT WILL Shelly's Smart Shopper's LIABILITY IN CONNECTION WITH A Shelly's Smart Shopper service or product EXCEED THE AMOUNTS PAID FOR SUCH Shelly's Smart Shopper service or product AND TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY END USER DURING THE SIX MONTHS PRECEDING THE BRINGING OF ANY CLAIM.
Shelly's Smart Shopper shall have the right, but not the obligation, to monitor the content of the Site and any Microsites at all times, including any chat rooms and forums that may hereinafter be included as part of the Site, to determine compliance with this Agreement and any operating rules established by Shelly's Smart Shopper, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, Shelly's Smart Shopper shall have the right, but not the obligation, to remove any material that Shelly's Smart Shopper, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
11. License Grant.
By posting communications on or through this Site or any Microsite, End User shall be deemed to have granted to Shelly's Smart Shopper a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the communication alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sub-licensees.
End User agrees to defend, indemnify and hold harmless Shelly's Smart Shopper, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of or related to any products or services purchased by End User in connection with the Site or any Microsites.
End User is solely responsible for interactions with Merchants and other users of the Site or Microsites. To the extent permitted under applicable laws, End User hereby releases Shelly's Smart Shopper from any and all claims or liability related to any product or service of a Merchant, any action or in-action by Merchant, including Merchant's failure to comply with applicable law and/or failure to abide by the terms of a Voucher, and any conduct or speech, whether online or offline, of any other user.
In connection with the foregoing release, End User hereby waives California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
Shelly's Smart Shopper may terminate this Agreement at any time. Without limiting the foregoing, Shelly's Smart Shopper shall have the right to immediately terminate any passwords or accounts of End User in the event of any conduct by End User which Shelly's Smart Shopper, at its sole discretion, considers to be unacceptable or in the event of any breach by End User of this Agreement. The provisions of Sections 2, 4, 5, 6, 7, 10, 11, and 12 will survive termination of this Agreement.
Shelly's Smart Shopper rights in respect of this trademark are hereby expressly reserved. Unless otherwise indicated, all other trademarks appearing on Site or Microsite are the property of their respective owners.
15. Third-Party Content.
Shelly's Smart Shopper, similar to an Internet Service Provider, is a distributor (and not a publisher) of content supplied by third parties and End Users. Accordingly, Shelly's Smart Shopper has no more editorial control over such content than does a public library, bookstore or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, or any other end users are those of the respective author(s) or distributor(s) and not of Shelly's Smart Shopper.
In many instances, the content available through this Site represents the opinions and judgments of the respective information provider, end user, or other user not under contract with Shelly's Smart Shopper. neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on Shelly's Smart Shopper by anyone other than authorized Shelly's Smart Shopper employee spokespersons while acting in official capacities. Under no circumstances will Shelly's Smart Shopper be liable for any loss or damage caused by an end user's reliance on information obtained through Shelly's Smart Shopper. It is the responsibility of End User to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, etc., or other content available through Shelly's Smart Shopper.
Shelly's Smart Shopper contains links to third-party websites maintained by other content providers. These links are provided solely as a convenience to you and not as an endorsement by Shelly's Smart Shopper of the contents on such third-party sites, and Shelly's Smart Shopper, hereby expressly disclaims any representations regarding the content or accuracy of materials on such third-party websites. If End User decides to access linked third-party websites, End User does so at its own risk. Unless you have executed a written agreement with Shelly's Smart Shopper expressly permitting you to do so, you may not provide a hyperlink to the Site or any Microsite from any other website. Shelly's Smart Shopper reserves the right to revoke its consent to any link at any time in its sole discretion.
This Agreement, including the Terms of Sale set forth below (which are incorporated into this Agreement) and any operating rules for Shelly's Smart Shopper established by Shelly's Smart Shopper, constitutes the entire agreement of the parties with respect to the subject matter hereof. No waiver by either party of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of this Agreement, invalid, such invalidity shall not affect the enforce-ability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect. The failure of either party to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided here-under.
By using this Site, End User agrees that: (1) any claim, dispute, or controversy End User may have against Shelly's Smart Shopper arising out of, relating to or connected in any way with this Agreement, this Site or any Microsite or the purchase or sale of any Voucher(s), shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"); (2) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for End User), or at such other location as may be mutually agreed upon by End User and Shelly's Smart Shopper; (3) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the End User's and/or Shelly's Smart Shopper's individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that the End User is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Shelly's Smart Shopper will pay as much of the End User's filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither End User nor Shelly's Smart Shopper shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, End Users may visit the AAA website at http://www.adr.org.
If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that 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. Current providers of such protections can be found at: http://www.en.wikipedia.org/wiki/List_of_Content_Control_Software.
II.TERMS OF SALE
Reproduction, sale or trade of a Shelly's Smart Shopper is prohibited. All sales are final - no refunds or exchanges of services.
EMAIL MARKETING TERMS
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE.
BY USING AND ORDERING PRODUCTS OR SERVICES FROM THIS WEB SITE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THIS WEB SITE OR ORDER PRODUCTS.
Shelly's Smart Shopper provides small, medium and large-sized businesses and organizations with (i) a variety of tools and resources to collect visitor email addresses and to create, launch and manage online email campaigns (the "Commercial Email Marketing Products"),
ALL SALES ARE FINAL.
The following are the terms and conditions for access to this web site and use of the Products.
1. Copyright Information Copyright © 2015 Shelly's Smart Shopper, All rights reserved.
This web site, and the information it contains, is the property of Shelly's Smart Shopper and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "Shelly's Smart Shopper" and the Shelly's Smart Shopper logo are registered trademarks of Shelly's Smart Shopper, under the applicable laws of the United States and/or other countries. Other Shelly's Smart Shopper product or service names or logos appearing in this Site are either trademarks or registered trademarks of Shelly's Smart Shopper and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of the Shelly's Smart Shopper trademark or other intellectual property rights concerning that name or logo.
Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:
The Products may not be used for the sending of SPAM and email sending capability is limited by the chosen plan. Each Price Plan speeds are set-up to send up froim 50, 250, 1000 to 1500 emails per hour maximum with a bounce rate of 5% or less, Large Price Plans are set-up to send at 5000 emails per hour maximum with a bounce rate of 5% or less. Maximum size of all running campaigns data list is 15,000 per each list.
All non-deliverable email addresses will be automatically transferred from active status to bounced status. To prevent the chance of resending to an inactive email account in the future, once an email contact is uploaded into the system, it cannot be deleted.
2.1 System maintenance time: Monday-Sunday 12:00AM – 6:00AM PST.
The Products may only be used for lawful purposes.
The Email Marketing Service will be subject to monthly subscription fees.
Every email message sent by you in connection with the products must contain the Shelly's Smart Shopper "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
You will comply with the restrictions on content of e-mail messages and activities using the Products as set forth in this Agreement.
3. Products and Support
By posting updated versions of the Agreement on the Shelly's Smart Shopper website, or otherwise providing notice to you, Shelly's Smart Shopper may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products at its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at Shelly's Smart Shopper website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete the registration form on the Shelly's Smart Shopper sign up web page in order to use the Products. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide Shelly's Smart Shopper service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by Shelly's Smart Shopper or its personnel.
4. Fees and Payment
4.1 Fees for Email Marketing Product. For the Email Marketing Product; You will be subject to monthly subscription fees in accordance with the fee schedule (the "Fee Schedule"). The Fees are based on the highest number of subscribers in your account at any time during the previous month. For purposes of this Agreement, each unique e-mail address will count as one subscriber. You will be required to submit payment monthly in advance for the Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Email Marketing Product. Access to the Email Marketing Product will be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Email Marketing Product
4.2 Fee Schedule; Discounts. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Shelly's Smart Shopper. The Fee Schedule, including subscriber levels and prices, is subject to change at any time at Shelly's Smart Shopper sole discretion.
Shelly's Smart Shopper will use good faith efforts to notify you via email prior to the effectiveness of any change to the Fee Schedule. If you receive special discounts through a marketing partner, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case Shelly's Smart Shopper standard rates will apply. Shelly's Smart Shopper may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account.
4.3 Payment. Payment for Products will be made by a valid credit card accepted by Shelly's Smart Shopper. Checks will be accepted for prepayments of at least six (6) months. Fees are payable in U.S. dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize Shelly's Smart Shopper to charge your credit card for such amounts on a regular monthly basis. If Shelly's Smart Shopper is for any reason unable to effect automatic payment via your credit card, Shelly's Smart Shopper will attempt to notify you via email and your Shelly's Smart Shopper account will be disabled until payment is received. Amounts paid for the Products are not refundable.
5. Email, Permission Practices, Image Hosting & Prohibited Content
5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. If you have used the Shelly's Smart Shopper 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 Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003 listed below as 5.3) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam. You cannot copy a Shelly's Smart Shopper template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. Emails that you send through the Product may generate spam complaints from recipients. As a matter of privacy, Shelly's Smart Shopper cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. Shelly's Smart Shopper, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Shelly's Smart Shopper will terminate your use of its Products if Shelly's Smart Shopper determines that your level of spam complaints is higher than industry norms.
5.3 The CAN-SPAM Act: Requirements for Commercial Emailers
The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.
The law, which became effective January 1, 2004, covers email whose primary purpose is advertising or promoting a commercial product or service, including content on a Web site. A "transactional or relationship message" – email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.
The Federal Trade Commission (FTC), the nation's consumer protection agency, is authorized to enforce the CAN-SPAM Act. CAN-SPAM also gives the Department of Justice (DOJ) the authority to enforce its criminal sanctions. Other federal and state agencies can enforce the law against organizations under their jurisdiction, and companies that provide Internet access may sue violators, as well.
What the Law Requires
Here's a rundown of the law's main provisions:
* It bans false or misleading header information. Your email's "From," "To," and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email.
* It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
* It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. You may create a "menu" of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.
Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email. When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor's email address. You cannot help another entity send email to that address, or have another entity send email on your behalf to that address. Finally, it's illegal for you to sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.
* It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address.
Each violation of the above provisions is subject to fines of up to $11,000. Deceptive commercial email also is subject to laws banning false or misleading advertising.
Additional fines are provided for commercial emailers who not only violate the rules described above, but also:
* "harvest" email addresses from Web sites or Web services that have published a notice prohibiting the transfer of email addresses for the purpose of sending email
* Generate email addresses using a "dictionary attack" – combining names, letters, or numbers into multiple permutations
* Use scripts or other automated ways to register for multiple email or user accounts to send commercial email
* Relay emails through a computer or network without permission – for example, by taking advantage of open relays or open proxies without authorization.
The law allows the DOJ to seek criminal penalties, including imprisonment, for commercial emailers who do – or conspire to:
* Use another computer without authorization and send commercial email from or through it
* Use a computer to relay or retransmit multiple commercial email messages to deceive or mislead recipients or an Internet access service about the origin of the message
* Falsify header information in multiple email messages and initiate the transmission of such messages
* Register for multiple email accounts or domain names using information that falsifies the identity of the actual registrant
* Falsely represent themselves as owners of multiple Internet Protocol addresses that are used to send commercial email messages.
The FTC will issue additional rules under the CAN-SPAM Act involving the required labeling of sexually explicit commercial email and the criteria for determining "the primary purpose" of a commercial email. Look for the rule covering the labeling of sexually explicit material in April 2004; "the primary purpose" rulemaking will be complete by the end of 2004. The Act also instructs the FTC to report to Congress in summer 2004 on a National Do Not E-Mail Registry, and issue reports in the next two years on the labeling of all commercial email, the creation of a "bounty system" to promote enforcement of the law, and the effectiveness and enforcement of the CAN-SPAM Act.
See the FTC Web site at www.ftc.gov/spam for updates on implementation of the CAN-SPAM Act.
The FTC maintains a consumer complaint database of violations of the laws that the FTC enforces. Consumers can submit complaints online at www.ftc.gov and forward unwanted commercial email to the FTC at firstname.lastname@example.org.
For More Information
The FTC works for the consumer to prevent fraudulent, deceptive, and unfair practices in the marketplace and to provide information to businesses to help them comply with the law. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.
Your Opportunity to Comment
The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency's responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.
5.4 Footers. For every email message sent in connection with the Products, you acknowledge and agree that Shelly's Smart Shopper may add an identifying footer stating "Powered by Shelly's Smart Shopper" or a similar message.
5.5 Use of Images Hosted by Shelly's Smart Shopper. Images hosted by Shelly's Smart Shopper on Shelly's Smart Shopper controlled servers may only be used in connection with the Products and for no other purpose whatsoever.
5.6 Prohibited Content. Shelly's Smart Shopper prohibits the use of the Products or web site by any person or entity that:
Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
5.7 Right to Disable Access. Shelly's Smart Shopper, at its own discretion, may immediately disable your access to the Products without refund if Shelly's Smart Shopper believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
6. Restrictions and Responsibilities
6.1 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by Shelly's Smart Shopper in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that Shelly's Smart Shopper perform such work at its standard professional services rates. Post and Companies can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or
(iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
6.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). Although Shelly's Smart Shopper has no obligation to monitor the content provided by you or your use of the Products, Shelly's Smart Shopper may do so and may block any e-mail messages, remove any such content or prohibit any use of the Products that Shelly's Smart Shopper believes may be (or is alleged to be) in violation of the foregoing.
6.4 Indemnification. You hereby agree to defend, indemnify and hold harmless Shelly's Smart Shopper and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that Shelly's Smart Shopper has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
6.5 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to Post and Companies.
Shelly's Smart Shopper may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of Shelly's Smart Shopper. Shelly's Smart Shopper may share your information with the marketing partner and the marketing partner may share related information with Shelly's Smart Shopper. Shelly's Smart Shopper will not provide your contact information to companies you have not authorized for that purpose unless required by law or unless you are terminated from Shelly's Smart Shopper due to unsolicited commercial email being sent from your Shelly's Smart Shopper account. Shelly's Smart Shopper will never sell or rent your contact lists to anyone without your permission. In the event Shelly's Smart Shopper amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.
6.6 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to Shelly's Smart Shopper or to any third party using the products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to Shelly's Smart Shopper by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to Shelly's Smart Shopper by email, you automatically grant-or warrant that the owner of such content or intellectual property has expressly granted-Shelly's Smart Shopper a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
You may terminate this Agreement at any time by calling Shelly's Smart Shopper Customer Support. There are no refunds for any fees paid with 7 day notice before next billing. If after this date your are reasonable for another month of services.
Shelly's Smart Shopper may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. Shelly's Smart Shopper shall have no liability to you or any third party because of such termination or action.
Shelly's Smart Shopper may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
8. Warranty Disclaimer; Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK.
Shelly's Smart Shopper DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND Shelly's Smart Shopper DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for Shelly's Smart Shopper to use commercially reasonable efforts to adjust or repair the Products.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL Shelly's Smart Shopper OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "Shelly's Smart Shopper") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF Shelly's Smart Shopper SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, Shelly's Smart Shopper IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF Shelly's Smart Shopper TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY Shelly's Smart Shopper TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Restricted Persons; Export of Products or Technical Data You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify Shelly's Smart Shopper within twenty-four (24) hours, and Shelly's Smart Shopper shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to Shelly's Smart Shopper.
You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
11. Links to Third-Party Web Sites
This web site may contain links to non-Shelly's Smart Shopper web sites. These links are provided to you as a convenience, and Shelly's Smart Shopper is not responsible for the content of any linked web site. Any non-Shelly's Smart Shopper web site accessed from this web site is independent from Shelly's Smart Shopper, and Shelly's Smart Shopper has no control over the content of that web site. In addition, a link to any non-Shelly's Smart Shopper web site does not imply that Shelly's Smart Shopper endorses or accepts any responsibility for the content or use of such web site.
12. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Shelly's Smart Shopper of that third party or of any product or service provided by a third party.
13. Notice and Take Down Procedures
Copyright Agent If you believe any materials accessible on or from this web site infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting Shelly's Smart Shopper copyright agent (identified below) and providing the following information:
Identification of the copyrighted work that you believe to be infringed.
Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
Your name, address, telephone number and (if available) e-mail address.
A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
14. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. Shelly's Smart Shopper will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by e-mail or by phone.
Shelly's Smart Shopper has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. Shelly's Smart Shopper shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.