(“Response Wise”) and Customer agree to the following terms and conditions. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS GOVERNING THE USE OF Response Wise’ ON-LINE SERVICES. THE TERMS “YOU” AND “CUSTOMER” REFER TO: (1) THE COMPANY, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES, OR (2) IN THE CASE OF A NON-LEGAL ENTITY, THE INDIVIDUAL IDENTIFIED IN THE REGISTRATION INFORMATION YOU PROVIDE TO Response Wise. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE. Response Wise provides a collection of tools and resources to create, launch, and manage online marketing campaigns (the “Services”). The following, along with any amendments or policies that may be published from time to time by Response Wise, are the terms and conditions for use of the Services.
1. Services and Support
1.1 The Services are provided subject to the following terms and conditions and any operating policies that Response Wise may establish (such terms, conditions and operation policies are referred to herein as the “Agreement”). Response Wise may make changes to the Agreement, and Customer’s continued use of the Services constitutes Customer’s acceptance of any such changes. 1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services. 1.3 The Services provide corporations, small businesses, and communities the tools to sign up visitors to their web sites, collect and retrieve visitor sign-up data, and develop and execute simple interactive marketing communications with visitors. 1.4 Customer must complete a registration form in order to use the Services. Customer will provide true, accurate, current, and complete information about Customer as requested in the registration form, and will update the information to keep it current. As part of the registration process, Customer will select an e-mail address and password for Customer’s Response Wise account. Customer is responsible for maintaining the security of the Customer account, password, and files, and for all uses of Customer’s account and of the Services in Customer’s name. Response Wise reserves the right to refuse a registration or to cancel an account as Response Wise in its sole discretion deems appropriate.
2. Restrictions and Responsibilities
2.1 This is an Agreement for services, and Customer is not granted a license to any software by this Agreement. Customer 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 the Services or any software, documentation, or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; or copy (except that Customer may make one electronic copy for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. 2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Response Wise’ privacy policies as published at the www.responsewise.com web site or as may otherwise be furnished to Customer (the “Policy”) and all applicable laws (including but not limited to regulations and laws related to spamming, privacy, obscenity, and defamation). Customer may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party unless Customer has the right to use such third party mailing lists. Customer hereby agrees to indemnify and hold harmless Response Wise against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Response Wise has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Response Wise may do so and may remove any such content or prohibit any use of the Services it believes may be (or that is alleged to be) in violation of the foregoing. 2.3 Customer acknowledges and agrees that an automatically generated identifying footer stating “Powered by Response Wise” or a similar message shall appear on every e-mail message sent by Customer in connection with the Services. 2.4 In using the various features of the Services, Customer may provide confidential or proprietary information, including but not limited to names, contact information, technical information, information about Customer’s use of the Services and the web site, and other registration information (the “Confidential Information”), to Response Wise. Customer acknowledges and agrees that Response Wise may use the Confidential Information to tailor its presentations to Customer, facilitate Customer’s movement through the web site, or communicate separately with Customer. Response Wise will not use or disclose the Confidential Information to third parties except as authorized by Customer, or unless Response Wise has entered into an appropriate confidentiality or non-disclosure agreement with such third party to prohibit the use or disclosure by such third party of the Confidential Information without the prior written consent of Customer.
3. Billing and Renewal
3.1 Response Wise charges and collects in advance for use of the Services. Response Wise will charge Customer’s credit card (or issue an invoice if Response Wise approves such an arrangement) for the Initial Term service fee, and will thereafter automatically bill Customer’s credit card (or issue an invoice to Customer) in the amount of Renewal Term service fees as follows: (a) every month for monthly accounts, (b) every quarter for quarterly accounts, or (c) each year on the subsequent anniversary for annual accounts. The renewal fee will be equal to the then-current service fee in effect at the time of such renewal. Fees for other services will be charged on an as-quoted basis. Response Wise’ fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Response Wise’ income. Customer agrees to provide Response Wise with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, Response Wise reserves the right to terminate Customer’s access to the Service in addition to any other legal or equitable remedies it may have. For credit card payers, service fees shall accrue at the start of the Initial Term, and Customer’s credit card will be charged at that time. Should Customer terminate its services in accordance with this Agreement prior to the end of a service period, Response Wise shall refund Customer’s credit card on a pro-rated basis for the remaining portion of the service period. If Customer has been approved for payment by invoice, invoices will be generated at the start of the Initial Term, and thereafter approximately one month in advance of the start of any Renewal Term, and shall be due within 30 days. Customer account will be considered delinquent (in arrears) if payment in full is not received within 30 days of the date of the invoice. If Customer believes that the bill is incorrect, Customer must notify Response Wise in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Response Wise billing will reflect the current pricing tier of the customer and is based on the number of contacts in the customer’s database. If customer signs up for a pricing tier and exceeds above or drops below that pricing tier, billing will be adjusted to reflect that pricing tier automatically. If customer directly violates Response Wise’s Anti-Spam Policy Customer will be subject to additional fees on a per transmission basis and the transmission rates are based on volume. These rates will apply for any bounce rates that occur over 5% and the charges will apply to the total number of messages sent for that campaign. Rates will also apply if Response Wise determine’s the content is deceptive or generates a complainant rate of over 5%.
Per transmission rates for bounces and unsolicited mail beyond thresholds:
1– 2000 .03¢
2,001 – 10,000 .02¢
10,001- 75,000 .01¢
200,001– 500,000 .005¢
500,001 – 1,500,000 .003¢
1,500,001- 3,500,000 .002¢
Response Wise will review the violation and a termination of violators’ account will be determined on a case by case basis. 3.2 Non-Payment and Suspension In addition to any other rights granted to Response Wise herein, Response Wise reserves the right to suspend or terminate this Agreement and Customer’s access to the Services if Customer’s account becomes thirty (30) days or more delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including attorney’s fees. Customer will continue to be charged service fees during any period of suspension. If Customer or Response Wise initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with the Charges and Payment of Fees section above. Customer agrees that Response Wise may charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees. Response Wise reserves the right to impose a re-connection fee in the event Customer’s account is suspended and thereafter requests access to the Services. Customer agrees and acknowledges that Response Wise has no obligation to retain Customer data and that such Customer data may be irretrievably deleted if Customer’s account is 30 days or more delinquent.
4. Warranty Disclaimer
Response Wise AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT; Response Wise AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY Response Wise AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY LAW.
5. Internet Delays
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Response Wise IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6. Limitation of Liability
IN NO EVENT SHALL Response Wise’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF THE PARTY FROM WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Restricted Persons; Export of the Site, the Products or Technical Data
You hereby represent and 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 Site or the Products is (a) a national of or an entity existing under the laws of any 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; (b) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (c) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (e) 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 us within 24 hours, and we shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you; provided, however, for the avoidance of doubt, you will remain liable to us for any outstanding obligations hereunder. You agree that you shall not utilize the Site or 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 Site or 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.
You may terminate your Response Wise account at any time by going to your Response Wise Account Settings and hitting the ‘CANCEL SUBSCRIPTION’ button below the billing section. Your account will remain active for 30 days from the day you cancel. NOTE: A system generated email will be sent to the email address on file to confirm cancellation. YOU MUST CLICK ON THE CONFIRMATION LINK IN THE CANCELLATION EMAIL MESSAGE TO CONFIRM AND FINALIZE YOUR CANCELLATION. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR RESPONSE WISE ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR RESPONSE WISE ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR RESPONSE WISE ACCOUNT AND THIS AGREEMENT. We may, in our sole discretion, terminate your Response Wise account or your access to or use of the Site or the Products, disable your Response Wise account or access to the Site or the Products, remove all or a portion of your Customer Information or data, cancel or suspend any of your queued campaigns, or put your Response Wise account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. After termination, you shall process all unsubscribe requests within 30 days of your cancellation date. Upon a submitted support request ticket at http://support.responsewise.com/customer/portal/emails/new , we will provide the list of unsubscribe requests from your Response Wise account to you. Under the CAN-SPAM Act and Canada’s Anti-Spam Legislation, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe(s) requests following termination of your Response Wise account and this Agreement.
9. Termination for Cause
Any breach of Customer’s payment obligations or unauthorized use of the Response Wise technology or Services will be deemed a material breach of this Agreement. Response Wise, in its sole discretion, may terminate Customer’s password, account or use of the Services if Customer breaches or otherwise fails to comply with this Agreement. In addition, Response Wise may terminate a free account if Customer does not first log on within 30 days after registration or if 90 days have passed since Customer last logged on. Customer agrees and acknowledges that Response Wise has no obligation to retain the Customer data, and such data may be irretrievably deleted if Customer has materially breached this Agreement, including but not limited to failure to pay any amounts owing to Response Wise when due, and such breach has not been cured within 30 days of notice of such breach.
Response Wise may give notice by means of a general notice on the Services, electronic mail to Customer’s e-mail address on record in Response Wise’ account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Response Wise’ account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to Response Wise (such notice shall be deemed given when received by Response Wise) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Response Wise at the following address: Response Wise, 1417 W. 51st Street Austin, TX 78756
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 11.2 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 11.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Response Wise in any respect whatsoever. 11.4 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys fees. 11.5 This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. 11.6 Response Wise reserves the right to modify its pricing and will notify Customer by email when this occurs. 11.7 Neither party has the right to assign this Contract without the written consent of the other.