This agreement (hereinafter, the “Agreement”) between Herefish, Inc. (hereinafter, “Herefish”, “us” or “we”) and you sets forth the terms and conditions which govern your use of the Herefish website (hereinafter, the “Site”) and/or the services (hereinafter, the “Services”) thereon which are provided by Herefish.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE AND/OR SERVICES. BY ACCESSING OR USING THE SITE AND/OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES AND SHOULD IMMEDIATELY CEASE SUCH USE. HEREFISH MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE OR VIA E-MAIL. YOUR USE OF THE SITE AND/OR SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE AND/OR THE SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
Herefish grants to you a limited personal, non-exclusive and non-transferable right and license to access the Site and use the Services thereon.
Herefish Services shall contain, without limitation, e-mail services, marketing services, review and message boards and various other message communication applications.
You must be able to verify when and where each contact to whom you intend to send emails to (“Subscriber”) subscribed to receive such emails. Purchased/paid subscriber lists are not allowed and any use of such lists will result in immediate cancellation of your account and no paid fees will be refunded. You must ensure that all Subscribers have not previously “opted-out” of communication you’re your company. All account email addresses must be valid.
Accounts are meant to be used for a single set of subscribers. You are not allowed to continually delete and re-import new contacts into an account. (Example: Signing up for a 25,000 contact plan and trying to send to 100,000 contacts by deleting and importing new contacts repeatedly)
Certain data points can not be exported from the service.
We continually monitor your sending and Subscriber actions to check for above average bounce, abuse, and/or unsubscribe rates. If any rate becomes abnormal your account may go into manual review. Should your sending activity cause spam reports or sending complications Herefish reserves the right to terminate the account without any refund. Herefish reserves the right to refuse service (sending or any other service) with or without reason.
In connection with your use of the Site and/or the Services, you acknowledge and agree that you will not:
In addition to the above, to ensure top deliverability we have very strict rules on the content and sending of emails from our service. The following types of emails and/or industries are not allowed (with no exceptions) for use with our service:
Certain products or Services may be offered for sale on the Site. In the event you wish to purchase or to subscribe to any of these products or Services, you will be asked by Herefish or an authorized third party to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide Herefish or such third party with the foregoing information as well as any other mandatory information that is accurate, complete and current, and to comply with the terms and conditions of any agreement that you may enter into governing your purchase of the product or Service. You shall be responsible for all charges incurred through your account as well as for paying any applicable taxes.
Some Services offered by Herefish are subscription-based services. If you open a subscription-based account with Herefish, you hereby agree to pay all charges to your account, including any applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable. Should you elect to terminate any subscription-based services, you will remain liable for all charges accrued up to the termination date, including full recurring charges for the recurring period during which you discontinued service. Herefish reserves the right to change the amount of, or basis for determining, any fees or charges for Services we provide, and to institute new fees, charges or terms effective upon notice to users. We reserve the right to terminate any account at any time for any reason.
If any of the Site or Services require you to open an account, you must complete the registration process by providing Herefish with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to Herefish which is untrue, inaccurate, not current or incomplete, Herefish reserves the right to terminate this Agreement and your continued access and use of the Site and/or the Services.
As part of the registration process, you may be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify Herefish immediately of any unauthorized use of your account or any other breach of security. Herefish will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by Herefish or another party due to someone else using your account or password.
Full message source size shall not exceed 2MBs after message has been fully constructed. Attachments are limited to 1 attachment at or below 50KB in size. Herefish reserves the right to limit types of files allowed.
The links on the Site and/or Services may let you leave the particular Site or Service you are accessing in order to access a linked site (the “Linked Site”). Herefish provides these links as a convenience, but we neither control nor endorse these Linked Site, nor has Herefish reviewed or approved the content which appears on the Linked Site. Herefish is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any Linked Site. You acknowledge and agree that Herefish shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the Linked Site.
Your participation, correspondence or business dealings with any third party found on or through our Site and Services, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Herefish shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
You acknowledge and agree that the Site and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and are the sole property of Herefish or its licensors. You further acknowledge and agree that any content contained in advertisements or information presented to you through advertisers concerning Herefish or otherwise is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, or other materials (collectively, ” Submission Materials”) or by posting such Submission Materials on the Site, you hereby grant to us and our designees a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you, the provider of the Submission Materials. The foregoing license to Herefish shall be fully paid-up and royalty free. In addition, under no circumstances shall Herefish have any obligation whatsoever to pay a fee to any subscriber or user in connection with the Submission Materials upon the occurrence of a transfer of all or any portion of Herefish business through a merger, sale or transfer of all or substantially all of the assets of Herefish, nor shall the sale of advertising on any of the Site give rise to any obligation to pay a fee to Subscribers.
None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on Herefish’s part and we shall not be liable for any use or disclosure of any such Submission Materials.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by Herefish infringe your copyright, you, or your agent may send to Herefish a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon Herefish actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send to Herefish a counter-notice. All notices and counter notices must meet the then current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details.
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
THE SITE AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEREFISH AND ITS AFFILIATES, SUPPLIERS, AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITE AND/OR SERVICES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, or (iv) THAT ANY SOFTWARE, SERVICES, SITE OR SERVER(S) ON WHICH THE SERVICES AND SITE ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE AND THE SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITE AND SERVICES ARE ENTIRELY AT YOUR OWN RISK.
EXCEPT WITH REGARD TO CUSTOMER’S OBLIGATIONS AND WITH REGARD TO EITHER PARTY’S OBLIGATIONS UNDER THE INDEMNIFICATION PROVISIONS OF THE TERMS OF SERVICE, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE LICENSE FEES DUE FOR TWELVE (12) MONTH PERIOD MEASURED BY THE MONTHLY PAYMENT OBLIGATION AT THE TIME OF THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL EITHER PARTY (INCLUDING, AS TO HEREFISH, ITS LICENSORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE).
The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the license of the Service, and if Herefish assumed further liability, the fees would be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
Herefish makes no representation or warranty that the content and materials on the Site and/or the Services are appropriate for use in locations outside the United States. Those who choose to access the Site or use the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. Herefish reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Site and/or the Services to any person, geographic area, or jurisdiction we so desire, and to limit the quantities of any such Service or products that we provide.
This Agreement constitutes the entire agreement and understanding between you and Herefish and governs your use of the Site and the Services, superseding any prior agreements between you and Herefish. This Agreement and the relationship between you and Herefish shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to its conflict of law provisions. You and Herefish irrevocably agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the county of St. Louis, in the State of Missouri, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. The failure of Herefish to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed here from and shall not affect the validity and enforceability of any remaining provisions. The section titles in this Agreement are for convenience purposes only and have no legal or contractual effect. This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent. No waiver by Herefish of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.