Net-Results Terms of Service
Forward I.T. Solutions, LLC d/b/a Net-Results ("Net-Results") provides tools and resources to monitor, score and react to customer and sales prospect interactions with digital and physical marketing content (the "Marketing Automation Services") and an integrated collection of tools and resources to create, launch, and manage online email marketing campaigns (the "Email Services"). The Marketing Automation Services and Email Services are collectively referred to as the "Services". The following are the terms and conditions for use of the Services by the person or persons accessing the Services ("Customer"), along with any amendments thereto and any operating rules or policies that may be published from time to time by Net-Results.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOU LAST UTILIZED THE SERVICES. BY USING THE SERVICES YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THE SERVICES.
- Services Subscription
- The Services are available only to persons who can form legally binding contracts under applicable law. If you are using the Services as an employee on behalf of an employer, you must have the authorization to bind your employer by your use of the Services. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify to use the Services, please do not use the Services.
- Customer may be required to 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. Customer must identify a primary contact email address for Customer's Net-Results account. Customer is responsible for maintaining the security of the Customer account, passwords, and files, and for all uses of Customer's account and of the Services in Customer's name. At its sole discretion, Net-Results reserves the right to refuse registration of accounts, or cancel an existing account, that it deems to be inappropriate.
- The Services are provided on a subscription basis. Services subscriptions automatically renew at the end of the then current term for an additional term of equivalent duration under Net-Results' then current applicable policies and terms, subject to Net-Results' acceptance and Customer's payment of fees for the Services at Net-Results' then current pricing or as otherwise agreed to in writing by Customer and Net-Results.
- Restrictions and Responsibilities
- 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 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 unless specifically authorized by Net-Results; or remove any proprietary notices or labels.
- Customer may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. Customer may only use permission-based lists. A permission-based list is defined as a list in which each entity on the list is a person or organization that has explicitly granted their permission to receive emails or other communications from Customer. Customer is solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. Net-Results, in its sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Net-Results may terminate Customer's use of the Services if Net-Results determines that the level of spam complaints is higher than industry norms.
- Customer agrees that each email sent by Customer in connection with the Services shall contain an "unsubscribe" link that allows a recipient to remove themselves from Customer's mailing list. Customer is prohibited from mailing to any recipient who has clicked on the unsubscribe link. Customer shall process all unsubscribe requests within ten (10) days of request by a Customer's email recipient. Failure to comply with this requirement may result in a termination of Customer's account by Net-Results, and all payments previously paid to Net-Results shall be forfeited by Customer at the time of termination.
- Subject to the posted terms and conditions, Customer may upload images hosted by Net-Results into their email campaigns. Any images hosted by Net-Results are only to be used in conjunction with the Services, and Customer is expressly prohibited from using the images for any other purpose. Customer is prohibited from using images within an email campaign to:
- Sublicense, distribute, transfer or assign any images in connection with any other product except for a Net-Results email or postcard;
- Reverse engineer, decompile, translate or dissemble any part of the Images;
- Remove any copyright notices, trademarks or watermarks from any place where it appears on the Images;
- Use the Images as part of another trademark, service mark or logo;
- Use the Images in any way that could be considered by a reasonable person to be defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to them, in the juxtaposition to accompanying text or images or otherwise;
- Use the Images in a manner that includes people as part of any sensitive subject matter, which shall be determined by Net-Results in its sole discretion. Example of sensitive subject matters include, but are not limited to, mental and physical health issues, sexual activity or preferences, substance abuse, guns and weapons, crime, suicide, abortion, hate groups, political or religious fanaticism, etc.
- In its use of the Services, Customer may provide information (such as name, contact information, or other registration information relating to either the Customer or Customer's employer) to Net-Results. Net-Results may use this information and any technical information about Customer's use of this web site to tailor its presentations to Customer, facilitate Customer's movement through this web site, or communicate separately with Customer. If Customer accessed the Services through a partner of Net-Results, all Customer information obtained by such partner may be shared with Net-Results. Net-Results may also share any Customer information with such partners and Net-Results affiliated companies. Net-Results will not provide information to unaffiliated companies.
- Customer hereby agrees to indemnify and hold harmless Net-Results and its business partners, third party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorney's fees) in connection with any claim or action that arises in any way from (a) an alleged violation of the Agreement or (b) Customer's use of the Services. Although Net-Results has no obligation to monitor the content provided by Customer or Customer's use of the Services, Net-Results may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the Agreement.
- Customer shall not use the Services in any manner (including, without limitation, the transmission of third party content or information) that may violate or infringe upon any rights of a third party. Customer shall be subject to the indemnification provisions in this Agreement if Customer's use of the Services violates or infringes upon such rights.
- Customer shall be solely responsible for securely maintaining its user name(s), password(s) and other account information. Net-Results may follow the instructions of any person who represents he is authorized by the Customer to use or make any changes to the account, provided such person verifies their identity by providing to Net-Results a username and password that is currently active within the Customer's account. Net-Results shall have no liability to Customer for any unauthorized use of Customer's account or the services provided hereunder.
- Customer Data. Customer owns all data collected on Customer's behalf by the Services as well as information or material Customer submits to the Services in the course of using the Services ("Customer Data"). Customer Data will not be shared with any third party unless Net-Results is compelled to do so by legal action. Net-Results will use Customer Data for the sole purpose of providing the Services.
- Free Trial Period
- In the event Customer elects to use the Net-Results Services on a trial basis, Customer will not be billed for the Services for the agreed upon trial period (the "Trial Period"), commencing on the date Customer accepts this Agreement. During the Trial Period, Customer may use the Services subject to the agreed upon subscriber limits. The subscriber limits for the Trial Period are subject to change at any time. Upon reaching the end of the free trial period, Customer may purchase a subscription for the Net-Results Services.
- Free trial registration may require Customer to provide a valid credit card. Should the number of emails sent by Customer during the Trial Period exceed the allowed number of complimentary email credits, the credit card will be charged at the per email rate of $0.01 or any other rate previously agreed upon.
- Should Customer wish to discontinue use of the Services upon or before expiration of the Trial Period, Customer must take all steps outlined in Section 5 of this Agreement titled "Termination".
- Should Customer wish to continue use of the Services upon expiration of the Trial Period no action is required on the part of the Customer. Customer will be deemed to have subscribed to and purchased the Services one (1) calendar day after expiration of the Trial Period the ("Subscription Date") unless Customer has completed all steps outlined in Section 5 of this Agreement titled "Termination" before expiration of the Trial Period. Customer's credit card will be charged on the Subscription Date and monthly thereafter per Section 6 of this Agreement titled "Payment Terms".
- If Customer was not asked to provide a credit card during free trial registration and they wish to send a greater number of emails during the free trial period than allotted, or if Customer wishes to continue use of the Services upon expiration of the trial period, Customer must provide valid credit card information to Net-Results online or via telephone. When this occurs, Customer is subject to the terms of automatic billing upon trial expiration as outlined in this Agreement. Customer's access to the Services may be disabled until valid credit card information is received.
- Customer may terminate this Agreement by providing at least 30 days written notice prior to the commencement of the next renewal term by undertaking the following two (2) actions: 1) Send an email message to support@Net-Results.com or send written notice to Net-Results at 1738 Wynkoop Street, Suite 201, Denver, CO 80202 USA and 2) Customer must remove the Net-Results tracking beacon/implementation code from all pages of all websites within which the implementation code resides. Termination notice will still be bound by term length designated on the executed Client Agreement. This Agreement will automatically renew unless written notice of termination is sent at least 30 days prior to the commencement of the next renewal term unless specifically designated within the executed Client Agreement.
- Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Upon any termination for cause by Customer, Net-Results shall refund to Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Net-Results, Customer shall pay any unpaid fees covering the remainder of the term of the current Client Agreement after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Net-Results for the period prior to the effective date of termination.
- Upon termination for any or no reason, Net-Results will retain Customer data for a period of 30 days after which Customer data may be deleted at the convenience of Net-Results. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, indemnity, warranty disclaimers and limitations of liability.
- Service Level Agreement (SLA)
The Services are offered with a SLA of 99.5% application availability measured monthly. The SLA agreement is available globally. Announced maintenance windows and downtime events that occur on third-party Internet transport providers are excluded from the SLA. In the event of SLA non-conformance in a given month, Net-Results will, at its sole discretion, grant Customer a credit against the next month's bill or a pro-rata refund of charges already incurred, or, if no further billing periods remain, a pro-rata refund of any prepaid fees, according to the application availability schedule below:
99.5% to 100% - 0 credit
98% to 99.49% - 3% credit
97% to 97.99 - 6% credit
Below 97% - 9% credit
- Payment Terms
- The Services are sold on a subscription basis. A subscription is deemed active when Customer has (i) completed the online registration, (ii) agreed to these Terms and Conditions and (iii) provided a valid credit card account number or other approved payment method and authorized the subscription payment. Payment for the first month of a subscription shall be due and payable upon the date of activation. Each month thereafter for the term of the subscription, Customer will be charged the monthly subscription fee on the same day of the month that the Customer purchased its' subscription or the last day of each calendar month, whichever is earlier (the "Billing Date"). Customer agrees to and authorizes Net-Results to make subsequent monthly charges to Customer for the duration of the term of the subscription and any renewals thereof.
- The Email Services are billed monthly in arrears on a usage basis. Customer agrees and authorizes Net-Results to charge Customer on the Billing Date for the emails sent at Customer's request via the Email Services. Price per email is established with the Customer at commencement of the Net-Results Services. Customer understands that each email that the Email Services attempt to send at Customer's request will result in a charge regardless of whether the email was actually received by the intended recipient due to bad email address, spam filtering, or any other reason.
- Access to the Services shall be disabled should Customer become delinquent in paying the subscription fees. Prices may change at any time at Net-Results's sole discretion unless otherwise agreed to in writing. Customer is responsible for understanding what current prices are in effect at all times. Net-Results will use reasonable efforts to notify Customer of any changes in pricing prior to such changes taking effect.
- Payment for Services shall be paid with any valid credit card that is accepted by Net-Results. If Net-Results, in its discretion, permits Customer to make payment using a method other than a credit card, Net-Results will invoice Customer approximately one month in advance of the pertinent billing period. All amounts invoiced hereunder that are not the subject of a written good faith dispute are due and payable within 30 days of the date of the invoice. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. All payments shall be made in U.S. dollars. Customer authorizes Net-Results to keep Customer credit card or Customer bank account information on file and charge such credit card or debit such bank account for the continuing usage of existing Services or the future usage of the Services. Customer's account will be disabled if Net-Results is unable to charge Customer's credit card for Services rendered or future Services purchased. Net-Results will attempt to notify Customer of our intent to suspend access to the Services prior to such suspension taking effect.
- Fees for the Services 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 U.S. taxes based on Net-Results' income), even if such amounts are not listed on an invoice or billing statement.
Net-Results prohibits Customers from sending email messages with content that is of the following nature:
- Messages that are in any way illegal such as sales of illegal substances, solicitation of escort services, or sales of any products or services that cannot be legally sold by Customer;
- Pornographic messages;
- Grossly offensive messages such as messages promoting hatred, bigotry, intolerance of religious beliefs, racism or any other messages that Net-Results, at its sole discretion, may deem to be offensive;
- Includes images that are not expressly authorized by either Net-Results or the owner of such images;
- Introduces any computer viruses, worms or software code that is detrimental to Customer's recipients;
- Any messages that includes spam (See Net-Results' anti-Spam Policy); or
- Any messages that are in any way prohibited by applicable law, would constitute a violation of applicable law or be inconsistent with community standards in any jurisdiction in which the recipient resides.
- Representations, Express Warranty
- Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. Net-Results warrants to Customer that it will use best efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Net-Results of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.
- For breach of the express warranty set forth above, Customer's exclusive remedy shall be the re-performance of the deficient Services. If Net-Results cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Net-Results for such deficient Services, and such refund shall be Net-Results' entire liability.
- The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Net-Results' reasonable control, but Net-Results shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NET-RESULTS AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. NET-RESULTS AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NET-RESULTS AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER NET-RESULTS NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NET-RESULTS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY NET-RESULTS, THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR PERSONAL INJURY OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY EITHER PARTY TO THIS AGREEMENT, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), DIRECTORS, OFFICERS, AFFILIATES, INSURERS, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR FRAUD OR WILFUL MISCONDUCT, EACH PARTY'S LIABILITY FOR ANY CLAIMS OF ANY TYPE OR NATURE HEREUNDER SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY CUSTOMER TO NET-RESULTS DURING THE TWELVE MONTHS PRIOR TO SUCH CLAIM.
- Export of Services or Technical Data. Customer may not remove or export from the United States or allow the export or re-export of the Services, 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.
- Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer's obligation to pay for the Services provided.
- 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.
- 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.
- 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 Net-Results in any respect whatsoever.
- Customer agrees that Net-Results may use Customer's name and logo in connection with marketing and promoting Net-Results.
- In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorney's fees, in addition to all other damages provided by applicable law.
- This Agreement shall be governed by the laws of the State of Colorado, USA without regard to its conflict of laws provisions. All legal actions or claims in connection with this Agreement shall be brought in the state or federal courts located in Denver, Colorado, USA.
- Statistical Information. Notwithstanding anything else in this Agreement or otherwise, Net-Results may compile statistical and performance information related to the provision of the Services, and may make such information publicly available, provided that such information does not incorporate Customer's Data and/or identify Customer's Confidential Information. Net-Results retains all intellectual property rights in such information.