You may be required to create an account and specify a password in order to use certain services and/or features on Marketing Engines Web Sites. To be eligible you must:
- Be at least eighteen (18) years old and able to enter into contracts;
- Complete the registration process;
- Agree to the Terms; and
- Provide true, complete, and up to date contact information.
By using Marketing Engines, you represent and warrant that you meet all the requirements listed above, and that you won’t use Marketing Engines in a way that violates any laws or regulations. (Representing and warranting is like making a legally enforceable promise.) Marketing Engines may refuse service, close accounts of any users, and change eligibility requirements at any time.
In some cases, an account may be assigned to you by an administrator, such as your employer or educational institution. If you are using or logging into an account assigned to you by an administrator, additional terms may apply to your use of the Sites. Moreover, your administrator may be able to access or disable your account without our involvement.
You may not share your account with anyone else. Please keep your password confidential, and try not to use it on other websites. If you believe that your account has been compromised at any time, please notify your system administrator.
The Term begins when you sign up for Marketing Engines and continues as long as you use the Service. Clicking the button and entering your username means that you’ve officially “signed” the Terms. If you sign up for Marketing Engines on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
You or Marketing Engines may terminate this Agreement at any time and for any reason by giving Notice to the other party. We may suspend our Service to you at any time, with or without cause. If we terminate your account without cause, we’ll refund a prorated portion of your monthly prepayment or reimburse you for unused services, if any. We won’t refund or reimburse you if there’s cause, like a violation of these Terms or our Acceptable Use Policy. Once terminated, we may permanently delete your account and all the data associated with it. If you don’t log in to your account for 12 or more months, we may treat your account as “inactive” and permanently delete the account and all the data associated with it.
During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We might provide some or all elements of the Subscription Service through third party service providers.
You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Marketing Engines portal (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Marketing Engines portal.
We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to, whether or not you authorized the use. You’ll immediately notify us of any unauthorized use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only reset your password.
We don’t know the inner workings of your organization or the nature of your personal relationships, and we don’t arbitrate disputes over who owns an account. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on the content in that account, and if multiple people or entities are identified in the content, then we’ll rely on the initial contact information listed for that account.
Please do not use the Sites and therefore your Account in a way that violates any laws, infringes on anyone’s rights, is offensive, or interferes with the Sites or any features on the Sites (including any technological measures we employ to enforce these Terms).
It should be common sense, so we won’t bore you with a list of things you shouldn’t do. But if we (in our sole discretion) determine that you have acted inappropriately, we reserve the right to take down Content, terminate your account, prohibit you from using the Sites, and take appropriate legal actions.
Using our Site does not give you ownership of any intellectual property rights to the content you access. You may not use content from our Sites unless you obtain permission from us or its owner, or unless you are otherwise permitted by law.
When you use a Site or send communications to us through a Site, you are communicating with us electronically. You consent to receive electronically any communications related to your use of a Site. We may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us. Please note that by submitting Content, creating a user account or otherwise providing us with your email address, postal address or phone number, you are agreeing that we or our agents may contact you at that address or number in a manner consistent with Dominate Real Estate Privacy Statement.
If you believe any Content on the Services infringes your copyrights, you may request that remove the Content from the Services (or disable access to that Content) by following the instructions on Marketing Engines Inc. Intellectual Property page.
You must read Marketing Engines Trademark and Copyright Usage Guidelines before using any of Marketing Engines intellectual properties. To request permission to use any of Marketing Engines copyrighted property, please execute our Permission to Use Trademark and/or Copyrighted Work Form.
Your Account on our Sites may include features that operate in conjunction with certain third party social networking websites that you visit such as Facebook, Instagram, YouTube, Vimeo, and Twitter (“Social Network Features”). While your use of the Social Network Features is governed by these Terms, your access and use of third party social networking sites and the services provided through the Services is governed by the terms of service and other agreements posted on these sites. You are responsible for ensuring that your use of those sites complies with any applicable terms of service or other agreements.
We reserve the right to modify our Sites and therefore your Account at any time, with or without notice to you. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Sites at any time.
You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide are described in Marketing Engines Service Agreement (or other URL we designate) and will be delivered in English. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
For our Full-Service Subscriptions, you may not downgrade your subscription and in order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. For our Limited Service Subscriptions, you may downgrade your subscription at the start of your next renewal Subscription Term, as specified in the Marketing Engines Service Agreement.
You agree that Your obligation to pay Marketing Engines for the Services ordered begins on the date of purchase and does not end until paid in full, even if the Services are abandoned, suspended, terminated or transferred prior to such time.
Unless otherwise agreed to in writing by Marketing Engines, all payments are due upon signup, the Services will not begin until payment is received. All recurring charges will be due on the monthly anniversary date of your initial signup. It is Customer’s obligation to review all monthly charges for accuracy. Failure to dispute a charge within six (6) months following such charge shall constitute Customer’s agreement that all charges are valid and Customer agrees to waive any claims it may have had regarding such charge. If a payment is returned or rejected by Marketing Engines bank, or incurs additional costs for Marketing Engines (e.g., bank fees) for any reason, then Customer may be charged a service fee of $40 and be required reimburse all such fees and costs incurred by Marketing Engines, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. If Customer defaults, Customer agrees to pay Marketing Engines its reasonable expenses, including attorney, in house legal expenses and collection agency fees, incurred in enforcing its rights.
Note: All billing correspondence (invoices, notifications, etc.) is done via email. It is crucial that you maintain a current email address with us.
Our charges for monthly plans are posted on Marketing Engines Pricing page and may be changed from time to time. If any part of a month is included in the Term, then payment is due for the full month. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If you go over your sending limit and reach another pricing level, then you’ll have to pay at the higher level on or before the next pay date. If the Term ends before that payment is due, you’ll still be required to make one payment at the higher level.
Some of Marketing Engines features may offer you to buy Credits to use instead of signing up for a monthly plan. This is explained on the Marketing Engines Pricing page of our Website. If you choose a Pay as You Go Plan, you’ll still be considered a Member, and other than the monthly payment requirement, all the terms of this Agreement will still apply to you. Credits for Pay as You Go accounts roll over and don’t expire, but if your account is inactive for more than 12 months, it may be deleted.
If you are paying by credit card, you authorize Marketing Engines to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
As long as you’re a Member or have an outstanding balance with us, you’ll provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any credit card that expires with information for a valid one. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If we’re unable to process your credit card order, we’ll try to contact you by email and suspend your account until your payment can be processed.
All initial fees must be paid prior to service setup. These fees may include service setup fees and first month service charge. Our billing cycle begins on the day we setup your account, and is due on that day each month thereafter. Marketing Engines attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts.
If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within eleven (11) days from the date of the invoice, unless otherwise specified in the Order Form.
Late fees may be charged 30 days, 60 days and 90 days past the due date. Accounts with over 90 days past due invoices will be closed and moved to collections.
All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
We’ll give you a refund for a prepaid month if we stop providing our Services to you for a reason that’s not laid out in these Terms or our Acceptable Use Policy. You won’t be entitled to a refund from us under any other circumstances. We may offer a refund if a Member applies for one based on the requirements posted on the Website.
Some features are offered as add-ons to your Marketing Engines account. If you add on a feature that has a charge, then you’ll be billed that additional amount with each billing cycle for as long as the add-on is active. Some add-ons, like Mandrill, are intended for particular use cases and may have additional terms or restrictions (“Additional Terms.”) If you use an add-on in a way that violates these Terms or the Additional Terms, then we may terminate your account. If you use Mandrill to send bulk emails, in violation of our Acceptable Use Policy, then we may charge you at the comparable Marketing Engines pricing tier or terminate your account.
We may change our fees at any time by posting a new pricing structure to our Website and/or sending you a notification by email.
You will respect our proprietary rights in the Website and the software used to provide Marketing Engines (proprietary rights include patents, trademarks, service marks, trade secrets, and copyrights). You may only use our brand assets according to Marketing Engines Brand Guidelines.
We may view, copy, and internally distribute content from your Emails and account to create algorithms and programs (“Tools”) that help us spot problem accounts. We use these Tools to find Members who violate these Terms or laws. For example, We study data internally to make our Email Genome Project smarter and create better experiences for senders and subscribers.
You promise to follow these rules:
- You won’t send Spam! By “spam,” we mean the definition on the Spamhaus website.
- You won’t use purchased, rented, or third-party lists of email addresses.
- You won’t violate our Acceptable Use Policy, which is part of this Agreement.
If you violate any of these rules, then we may suspend or terminate your account.
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Marketing Engines user, please report it to our abuse team. (The best way to tell whether an email was sent through Marketing Engines is that every Marketing Engines campaign has an embedded Campaign Tracking ID in the header that makes it easy to report suspected spam.) If you think anyone has posted material that violates any copyrights, then you can notify us according to our Copyright Policy.
You may only use our bandwidth for your Marketing Engines emails. We provide image and data hosting only for your email campaigns, so you may not host images on our servers for anything else (like a website). We may throttle your sending or connection through our API at our discretion.
We will comply with all U.S. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
You represent and warrant that your use of Marketing Engines will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements. You may not use our Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
If you’re located in the European Economic Area (EEA) or send to anyone in the EEA, you represent and warrant in using Marketing Engines services, you:
- Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where you’re sending any form of email through Marketing Engines.
- Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection laws and regulations. You have the necessary permission to allow Marketing Engines to receive and process data and send communications to that individual on your behalf.
- Agree to indemnify and hold us harmless from any losses, including attorney fees, that result from your breach of any part of these warranties.
- Have signed our Data Processing Agreement.
The software that supports the Services (the “Software”) is subject to United States export controls. Export laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of United States export laws. You’re downloading and using the Software at your own risk.
To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Services, including any downloads from the Website. We and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages. Our total liability for all claims made about the Service in any month will be no more than what you paid us for the Service the month before.
To the maximum extent permitted by law, we provide the material on the Website and the Service as is. That means we don’t provide warranties of any kind, either express or implied, including but not limited to warranties of merchantability and fitness for a particular purpose. Since people use Marketing Engines for a variety of reasons, we can’t guarantee that it will meet your specific needs.
You agree to indemnify and hold us and our Team harmless from any losses, including attorney fees that result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including attorney fees, that result from third-party claims that you or someone using your password did something that, if true, would violate any of these Terms.
If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover reasonable attorney fees and any damages or other relief we may be awarded.
If you violate these Terms then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
We and our Team aren’t responsible for the behavior of any advertisers, linked websites, or other Members.
We provide our Services using a commercially reasonable level of care and promise to do our best to make sure you enjoy the Services. But there are certain things that we don’t promise about our Services.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, NEITHER MARKETING ENGINES, INC. NOR ITS AGENTS OR SERVICE PROVIDERS (THE “SERVICES ENTITIES”) MAKE ANY SPECIFIC PROMISES ABOUT THE SITES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SITES, THE SPECIFIC FUNCTION OF THE SITES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SITES “AS IS”.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.
EXCEPT WHERE PROHIBITED, THE SERVICES ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SITES OR ANY THIRD PARTY’S USE OF THE SITES. THESE EXCLUSIONS INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF THE SERVICES ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED.
The Software and Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:
- Only as Commercial Items,
- With the same rights as all other end users, and
- According to the Terms
Published and Unpublished rights are reserved under the copyright laws of the United States. Manufacturer is The Rocket Science Group, LLC, 675 Ponce de Leon Ave NE, Suite 5000, Atlanta, Georgia 30308.
You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
If it turns out that a section of this Agreement isn’t enforceable, then that section will be removed or edited as little as necessary, and the rest of the Terms will still be valid.
The headers and sidebar text are provided only to make this agreement easier to read and understand. The fact that we wrote these Terms won’t affect the way this Agreement is interpreted.
Amendments or changes to these Terms won’t be effective until we post revised Terms on the Website. If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
Because we have so many Members, we can’t change these Terms for any one Member or group.
You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
In the event of a security breach that may affect you or anyone on your Email distribution lists (each a “List”), we’ll notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to anyone on your Lists, you’ll promptly do so.
Any notice to you will be effective when we send it to the last email or physical address you gave us or posted on our Website. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Marketing Engines, 675 Ponce de Leon Ave NE, Suite 5000, Atlanta, GA, 30308, or any addresses as we may later post on the Website.
Customer agrees Customer will NOT approach any employees of Marketing Engines and its affiliates with proposals to hire them as its own employees or contractors. If you were to hire any of Marketing Engines employees, you agree to pay Marketing Engines for each employee hired the greater amount of three (3) years’ salary for that employee as you are to pay such employee, or $200,000.
Customer shall indemnify and hold harmless Marketing Engines from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees and fees attributable to in house legal personnel, arising from or relating to Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.
Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will control.
Types of Termination. This Agreement may be terminated:
- By either Party on provision by written notice to the other Party.
- By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within 3 business days of receipt of written notice (the “Termination Letter”) thereof.
- By either Party at any time and without prior notice, if the other Party is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the other Party, or is guilty of serious misconduct in connection with its performance under this Agreement.
Responsibilities after Termination. Following the termination of this Agreement for any reason, the Company shall promptly pay Marketing Engines according to the terms of Exhibit A in Marketing Engines Service Agreement for Services rendered before the effective date of the termination (the “Termination Date”). Marketing Engines acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement.
Customer may not assign this Agreement without the prior written consent of Marketing Engines, which Marketing Engines may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. Marketing Engines may assign this Agreement, which shall be effective upon written notice provided to Customer.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
Marketing Engines supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright, please refer to Marketing Engines Trademark and/or Copyright Infringement Policy.
To cover the increasing cost of processing abuse claims, Marketing Engines reserves the right to charge Customer a processing fee for each instance of notification received from a legitimate copyright holder. Marketing Engines reserves the right to suspend or terminate any Services if, upon notification, Customer fails to comply with a legitimate infringement claim within the specified time.
In addition to the general Terms of Service above, you also agree to be bound by the additional service specific terms applicable to the Services you purchase and/or use. The Service Specific Terms and Policies as outlined in Marketing Engines Service Agreement and Marketing Engines Pricing page are hereby incorporated by reference and will be binding upon the parties.