THIS AGREEMENT (“AGREEMENT”) CONTAINS TERMS AND CONDITIONS RELATING TO YOUR EVALUATION OF THE IMAKENEWS SERVICE FROM IMAKENEWS, INC. (“IMN”) THAT YOU MAY SIGN UP TO, EITHER DIRECTLY FROM IMN OR THROUGH AN AUTHORIZED IMN RESELLER (“RESELLER”). BY CLICKING ON THE "I ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE "I ACCEPT" BUTTON.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT. THE TERM "YOU" REFERS TO: (1) THE CORPORATE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES AND USERS, OR (2) YOU, AS AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT CLICK ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT AND YOU SHALL NOT USE THE IMAKENEWS SERVICE.
1. Services. Subject to the terms and conditions of this Agreement, IMN or its subcontractors will provide you with temporary access to its e-newsletter publishing system (the “Service”) to be used solely by you for evaluating the Service for the time period enrolled in by you with IMN or a Reseller. In order to use the Service, you are responsible at your own expense to access the Internet, either directly or through devices that access Web-based content and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device. You shall not attempt to access any other of IMN's systems, programs or data that are not made available for public use. In furtherance of the Service, IMN agrees to provide to you, services consisting of non-exclusive electronic access to an IMN server and storage system ("Server") to store your e-newsletters, information and content, which may be supplied by you and modified by you from time to time.
2. IMN Technology. In connection with the performance of the Service, IMN shall operate and support the hosted environment, including, without limitation, the IMN Technology, the Server hardware, disk storage, firewall protection, Server operating systems, management programs, Web server programs, documentation and all other information developed or provided by IMN or its suppliers under this Agreement, as well as all other documents, software, products and services contained or made available to you in the course of using the Service (collectively, the “Hosted Materials”). For purposes of this Agreement, “IMN Technology” means all of IMN's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by IMN in providing the Service.
3. License Grant. Subject to the terms and conditions of this Agreement, IMN hereby grants to you a non-exclusive, non-transferable, revocable license to allow up to five Users access the Service solely for evaluation purposes. You shall be entitled to email the e-newsletters created by you in connection with the Service to up to 1,000 recipients. A “User” shall mean, if you are a corporate or similar entity, any of your employees, consultants or independent contractors. This license is restricted to use by you and your Users and does not include the right to use IMN Technology on behalf of any third party or the right to permit any non-User to access or use the Service. All rights not expressly granted to you are reserved by IMN and its licensors. There are no implied rights.
4. Restrictions. Unauthorized use, resale or commercial exploitation of the Service and/or the Hosted Material in any way is expressly prohibited. Without IMN’s express prior written consent in each instance, you shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Hosted Materials, including the IMN Technology, or access the Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Service. Except as expressly permitted in this Agreement, you shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license or the Hosted Materials to any third-party. You shall take all measures necessary to ensure compliance by all of its Users authorized to access the Service pursuant to Section 3 above with all terms and conditions of this Agreement. You shall indemnify and hold IMN harmless from and against any losses, damages and costs incurred by a breach of this Agreement by such Users.
5. Ownership. You acknowledges and agree that (i) as between IMN and you, all right, title and interest in and to the Hosted Materials, including the IMN Technology and the Service and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain IMN’s or its licensors’, and this Agreement in no way conveys any right or interest in the Hosted Materials, the IMN Technology or the Services other than a limited license to use them for evaluation purposes in accordance herewith, and (ii) the Hosted Materials, the IMN Technology and the Service are works protected by copyright, trade secret, and other proprietary rights and laws. The IMN name, the IMN logo, and the product names associated with the Service, including, but not limited to “IMN”, are trademarks of IMN or third parties, and no right or license is granted to use them. You shall not remove any IMN trademark or logo from the Service (without IMN’s consent and only upon the payment of additional fees to IMN).
6. Spam Policy; Email Policy. You represents that the list of individual email addresses that you will use was obtained in a legal manner, and that all individuals have agreed to receive a promotion from you. You also agree that if at any time any person chooses to no longer receive an electronic communication from you, you will immediately remove such person from the distribution list of any and all future communications and that you will keep them removed from the distribution list until such person chooses to receive the communications again. In connection with the use of the Service, you shall abide by and be subject to IMN’s then current email policy, as amended, as published on IMN’s web site at: http://www.imninc.com/imn_email_policy.asp.
7. Content. All content (articles, images, and email addresses) which the you enter into the Service (the “Customer Content”) are stored in a private and secure fashion, and will not be used by IMN except as necessary to provide the Service. During the term of this Agreement, you hereby grant to IMN a limited, non-exclusive, non-transferable, royalty-free right to use the Customer Content solely in connection with providing the Service. Except as provided in this Agreement, you shall be solely responsible for providing, updating, uploading and maintaining all Customer Content. The accuracy of Customer Content shall be your sole responsibility.
8. Your Responsibilities. IMN does not guarantee the accuracy, integrity or quality of such Customer Content. You shall not use the Service to: (a) upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Content transmitted through the Service; (e) upload or otherwise transmit any Customer Content that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Customer Content or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (g) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the Service or Servers or networks connected to the Service; or (i) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Communications Commission, Federal Trade Commission and the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data.
9. Warranties/Limitation of Liability. You represent and warrant that; (i) Customer Content, including without limitation the products and services offered by you pursuant to such content, will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) you have all power and authority to enter into this Agreement and has duly and validly authorized this Agreement, and; (iii) you agree to comply with all Federal and state laws, regulations and rules, including without limitation regulations pertaining to online commerce, and consumer privacy rules promulgated the Federal Trade Commission.
Except as expressly permitted in this Agreement, you shall not, and shall not permit others to, (i) remove any proprietary notices or labels on the Services (including without limitation, any copyright, trademark notices), or (ii) use the Service other than as expressly permitted hereunder.
THE SERVICE IS PROVIDED TO YOU “AS IS”. YOU acknowledge and agree that except all warranties, whether express, implied or statutory, and all obligations and representations as to performance, including all warranties which might arise from course of dealing or custom or trade and including all implied warranties of merchantability or fitness for a particular purpose, are hereby expressly excluded and disclaimed by IMN. IMN MAKES NO WARRANTY THAT THE SERVICE WILL BE AVAILABLE TO YOU.
You acknowledge and agree that in no event shall IMN or its respective directors, officers, employees, technology partners, affiliates, or agents be liable for direct, indirect, special, incidental, exemplary, or consequential damages, or for the loss of anticipated profits to you or your customers, or any other person under any provision of this Agreement.
10. You shall defend, indemnify, and hold IMN harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against IMN and its employees and affiliates arising from or connected with (i) any claim that Customer Content infringes or misappropriates any third party intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by you.
11. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successor and assigns. You may not, without the prior written consent of IMN, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall at IMN’s election be deemed a material default of this Agreement and at IMN’s election shall be void.
12. Entire Agreement. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein.
13. Termination. This Agreement and your use of the Service shall terminate upon the earlier of (i) the last day of the evaluation period that you signed up for in connection with such evaluation or (ii) the date that IMN chooses to terminate your right to access and use the Service (which it may do so at any time and for any reason in its sole and absolute discretion). Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and IMN shall no longer provide access to the Service to you and (ii) you shall cease and cause you Users to cease using the Service.
14. Miscellaneous. Any obligation reasonably expected to survive termination or expiration of this Agreement shall survive. This Agreement shall be interpreted according to the laws of the Commonwealth of Massachusetts without regard to or application of choice-of-law rules or principles. Any legal action or proceeding with respect to this Agreement will be brought in the federal or state courts located in the Commonwealth of Massachusetts and you accept, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. This Agreement shall not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
AGAIN, BY CLICKING ON THE "I ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO AGREEMENT ABOVE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT AS SET FORTH ABOVE, DO NOT CLICK THE "I ACCEPT" BUTTON AND DO NOT USE THIS SERVICE.