Terms and Conditions

EMAILTRACK.COM INTERACTIVE MARKETING
SITE OWNER AGREEMENT AND SOFTWARE LICENSE TERMS

Through its EMAILTRACK.COM website (the "Services") EmailTrack.com ("EmailTrack.com") provides web site operators and other individuals a variety of tools and resources to collect visitor e-mail addresses and to create, launch, and manage online e-mail campaigns. This service may not be used for the sending of unsolicited e-mail (sometimes called "spam"). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By checking the "I accept these terms and conditions" box on the Sign Up page or after logging in for the first time, you accept these terms and conditions.

1. Services and Support

1.1 The Services are provided subject to this Agreement, as it may be amended by EmailTrack.com, and any guidelines, rules or operating policies that EmailTrack.com may establish and post from time to time (the "Agreement"). By posting updated versions of the Agreement at the EmailTrack.com web site, or otherwise providing notice to you, EmailTrack.com may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.

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 enable corporate web sites, small business web sites, and community sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute e-mail communications with visitors and other targeted prospects.

1.4 Both the number of e-mail messages sent and the number of Kilobytes of data transferred are metered by EmailTrack.com. Normal EmailTrack.com accounts allow you to send a fixed number of e-mail messages per month with the total Kilobytes data transfer of all messages not exceeding 200 Kilobytes multiplied by the total number of allowed e-mail messages per month. Additional data transfer may be purchased at U.S. $1.00 per 10 Megabytes of data transfer. Unused e-mail volume and unused data transfer do not carry over from month to month.

1.5 For standard accounts, the Services will be subject to monthly subscription fees ("Paid Services"). Access to the Services will be disabled until payment is received. Paid Services are billed monthly, according to the Fee Schedule provided to you by EmailTrack.com, unless alternate billing arrangements have been agreed to by you by and an authorized EmailTrack.com representative. The Fee Schedule, including volumes of e-mail, data transfer limits, and prices, are subject to change at any time. All fees paid to EmailTrack.com for the service are non-refundable, unless account is terminated by EmailTrack.com for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by EmailTrack.com or by Cheque, unless other payment arrangements have been made between you and an authorized EmailTrack.com representative. You hereby authorize EmailTrack.com to charge your credit card for such amounts on a regular basis, but generally at the beginning of every month. You may upgrade your account for a particular monthly period from your base level subscription to allow more e-mail sending or more data transfer for a particular month. In such cases, you authorize EmailTrack.com to charge your credit card on the day you upgrade, the difference between the new level you are upgrading to and the base level. Fees are payable in US dollars. If EmailTrack.com is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail and your EmailTrack.com account will be disabled until payment is received. Monthly pricing may vary based upon number of e-mails sent and size of e-mails sent. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by EmailTrack.com.

1.6 For pay-as-you-go accounts, available only by special request, the Services will be subject to minimum monthly subscription fees ("Paid Services") of $50. Access to the Services will be disabled until payment is received. Paid Services are billed monthly at a time, according to the Fee Schedule provided to you by EmailTrack.com, and at the end of each month, depending on how many e-mail messages and how much data was transferred during the month. The Fee Schedule, including volumes of e-mail, data transfer limits, and prices, are subject to change at any time. All fees paid to EmailTrack.com for EmailTrack.com are non-refundable, unless account is terminated by EmailTrack.com for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by EmailTrack.com, unless other payment arrangements have been made between you and an authorized EmailTrack.com representative. You hereby authorize EmailTrack.com to charge your credit card for such amounts at the beginning of the month based on number of e-mail messages sent and amount of data transferred. Fees are payable in US dollars. If EmailTrack.com is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail and your EmailTrack.com account will be disabled until payment is received. Monthly pricing may vary based upon number of e-mails sent and size of e-mails sent, and you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by EmailTrack.com.

1.7 For all accounts, EmailTrack.com may charge an account re-activation fee should an account need to be re-activated by customer after account has become de-activated due to non-payment or an untimely authorization for payment.

1.8 You must contact a sales representative and obtain an account in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested by the sales representative. As part of the registration process, you will identify an e-mail address and password for your EmailTrack.com account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. EmailTrack.com reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

1.9 It is understood that EmailTrack.com makes no guarantee that HTML messages will be rendered properly on all recipients' e-mail programs, due to the wide variety of HTML generation tools available. EmailTrack.com makes every attempt to make sure that all e-mail messages sent through our servers follow W3C and IETF e-mail standards, but we cannot guarantee that messages will look consistent across all e-mail platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML e-mail messages, it is expected that recipients of your message using a non-Microsoft e-mail application may have difficulty reading your message. For best results EmailTrack.com recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards. EmailTrack.com also provides a built-in browser-based HTML editor which you may use to compose your HTML message. This is provided as-is. EmailTrack.com makes no guarantee that the HTML generated by the browser-based HTML editor will result in messages that look the same on all e-mail platforms.

2. Restrictions and Responsibilities

2.1 This is an Agreement for Services, 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 Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

2.2 You acknowledge and agree that the Services and the EmailTrack.com company names and logos and all related product and service names, design marks and slogans, are the property of EmailTrack.com or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of EmailTrack.com. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in EmailTrack.com or its third party suppliers, as the case may be.

2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You hereby agree to indemnify and hold harmless EmailTrack.com 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 or otherwise arising from or relating to your use of the Services. Although EmailTrack.com has no obligation to monitor the content provided by you or your use of the Services, EmailTrack.com may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

2.4 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in this jurisdiction or your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights.

2.5 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to EmailTrack.com. EmailTrack.com may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you. If you licensed the Services as a result of solicitation by a Marketing Partner of EmailTrack.com, EmailTrack.com may share your information with the Marketing Partner. EmailTrack.com will not provide information to companies you have not authorized, and EmailTrack.com will not permit the companies that get such information to sell and redistribute it without your prior consent.

2.6 EmailTrack.com will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, EmailTrack.com will not use your customer information for the purpose of sending unsolicited commercial e-mail.

2.7 You will adopt and maintain the Privacy Statement, which may be modified by EmailTrack.com from time to time.

3. Termination

3.1 You may terminate this Agreement at any time by sending an e-mail message to administrator@EmailTrack.com.com or by sending written notice to EmailTrack.com at BCE Place TD Canada Trust Tower 161 Bay Street , 27th Floor Toronto , Ontario M5J 2S1 . Correspondence must include your first name, last name, and EmailTrack.com username. No refunds will be issued if you terminate this agreement.

3.2 EmailTrack.com may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Upon termination by EmailTrack.com for reason other than violation of the Anti-Spam policy, EmailTrack.com will provide you a proportionate refund of the advance quarterly payment which EmailTrack.com has received for the then-current month, based on the number of days remaining in the quarter following the date of termination. Except for such refund, EmailTrack.com shall have no liability to you or any third party because of such termination. If EmailTrack.com terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.

3.3 EmailTrack.com may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

3.4 If you do not log into your account for more than 90 days, the account will become inactive. When an account is classified (at EmailTrack.com's sole discretion) as inactive, EmailTrack.com will notify you by e-mail. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE EMAILTRACK.COM DATABASE.
4. Warranty Disclaimer Remedies

USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. EmailTrack.com DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND EmailTrack.com DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for EmailTrack.com to use commercially reasonable efforts to adjust or repair the Services.
5. System Requirements

It is understood that in order to use EmailTrack.com, a Windows PC with Internet Explorer 5.5 (or higher) or Mozilla 1.0 (or higher) must be used. Additionally, a stable connection to the Internet is required. EmailTrack.com may work in a limited manner on Macintosh, Unix, and other platforms, but there is no guarantee of functionality on non-Windows platforms.

6. Miscellaneous

6.1 If any provision of the 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.

6.2 EmailTrack.com and you agree that the 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 the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

6.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind EmailTrack.com in any respect whatsoever.

6.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.

6.5 The Agreement shall be governed by the laws of the State of Arizona, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Scottsdale, Arizona.
7. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EmailTrack.com OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "EmailTrack.com ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF EmailTrack.com 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, EmailTrack.com 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 LIABILITY OF EmailTrack.com TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
8. Sending

EmailTrack.com's e-mail servers are white-listed with on all major ISP’s, and as a result, EmailTrack.com requires the following of e-mail messages to be compliant with the CAN-SPAM ACT of 2003:

1. All e-mails must contain a one-click unsubscribe link. EmailTrack.com provides an unsubscribe link, and this can be found by clicking "Unsubscribe”.

2. All e-mails to must contain non-Internet contact information of the sender, such as your company's address. PO Box addresses are NOT acceptable.

3. All e-mails must state the reason the recipient is receiving the message. For example, "You are receiving this message from ABC Company because you signed up for our e-mail list at www.abc.com" with a non deceptive subject line.

These 3 guidelines will help ensure that EmailTrack.com maintains its reputation and white-listing status.