1. LEGAL AGREEMENT
ListLynx Software, Inc. ("ListLynx Email Manager or "List ynx")
and its affiliates provide software, products, web sites, and technology
(collectively, the "ListLynx Services"). These ListLynx Terms
of Service comprise a legal agreement ("Agreement") between You
(the customer submitting an order form associated with this Agreement or
otherwise using ListLynx Services) and ListLynx and govern Your use of ListLynx
Services. BY ORDERING ListLynx SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS
OF SERVICE, AS MODIFIED FROM TIME TO TIME. If you do not agree to these Terms of
Service, do not order or use any ListLynx Service.
"You" means You, Your company, Your employees, and anyone who has
access to use Your ListLynx account. You must be at least eighteen (18) years
of age to subscribe to and use any ListLynx Service.
You agree to familiarize Yourself with, and to regularly review, the Terms of
Service, and other terms and guidelines published by ListLynx and abide by
them if You choose to use the ListLynx Services to which such terms apply.
ListLynx reserves the right to change the Terms of Service at anytime without
notice. If You continue to use ListLynx Services after any such changes, Your
continued use will constitute Your consent to such changes. ListLynx agrees to
identify the date of last revisions of its Terms of Service.
If You do not have print capability and desire to obtain a hard copy of these
Terms of Service, please send ListLynx an email requesting a hard copy. You may
also click on the link to "Terms of Service" at the bottom of each page
of ListLynx web sites for a copy of these Terms of Service, which may be printed
and saved through the printing and saving capability of your browser and printer.
If you have questions about these Terms of Service, please contact ListLynx at
Administrator@ListLynx.com.
2. YOUR WARRANTIES
By subscribing to or receiving any ListLynx Service, You make the following
representations and warranties. ListLynx shall have the right to terminate
your ListLynx account, without notice at any time, if any representation
or warranty made by You proves to be untrue in any respect.
You represent and warrant that:
You and all users of the ListLynx Service approved by you are at least eighteen
(18) years of age;
You have the legal capacity and authority to: (a) enter into binding contracts
for the sale and purchase of goods and services, (b) be bound by these Terms of
Service, (c) subscribe to and use the ListLynx Service, including, where applicable,
the buying, selling and listing of items, in accordance with these Terms of Service,
and (d) if you are acting in a corporate capacity, bind Your company;
You will not use the ListLynx Service for any purpose that is unlawful, or
prohibited by these Terms of Service (as may be modified from time to time);
All information and content supplied by You or by others using any ListLynx
Service, including but not limited to all information submitted as part of the
registration and subscription process and all content included in emails
delivered by you via any ListLynx Service (collectively, "Customer
Content"), is true and accurate;
Any products or services advertised, sold or otherwise distributed by You on or
in connection with any Customer Content are legal for sale or distribution; that
you have all licenses necessary to sell or advertise the goods or services offered
for sale or distribution and that all sales and advertisements will be in compliance
with applicable law;
You own or have the right to use all of the intellectual property, proprietary and
similar rights necessary for all Customer Content, and all products and services
sold or otherwise distributed by You or on Your behalf that are referred to in the
Customer Content;
Your delivery of emails in connection with any ListLynx Services is in full
compliance with the CAN-SPAM Act of 2003; and
You have secured required permission to use any person's name, voice, likeness
or performance as embodied in any Customer Content, and nothing in the Customer
Content will otherwise infringe on the privacy or publicity right of any individual.
By using the ListLynx Service, You agree that You will defend and indemnify ListLynx
and its suppliers from any third party claim related to a breach of any of the
foregoing warranties.
3. email CAMPAIGNS:
ListLynx provides email management software for newsletters, surveys, press releases,
and other customer communications.
ListLynx may only be used in connection with email lists for which recipients
have voluntarily registered. Using ListLynx to send email to an address You
obtain without the consent of such addressee is a violation of the ListLynx
Terms of Service. You may not access the mailing lists of third parties on ListLynx
Services, and You may not access or otherwise use such third party mailing lists in
connection with preparing or distributing unsolicited email to any third party. You
may not import any email addresses to Your list that have not chosen to receive Your
mailings. You may only send email to customers that have willingly signed up to
receive Your mailings. If ListLynx receives complaints about Your list, Your list
will be reviewed and may be terminated. You may not send mail under any company or
organization name other than Your own and/or with fraudulent header or source
information. Please see ListLynx's anti-spam policy for further information and
restrictions regarding use of ListLynx Services.
If you use ListLynx to create a mailing list (a "Mailing List"), You may
remove any email address contained therein from such Mailing List at Your discretion.
You agree to honor the request of the owner of any email address to remove that address
from a Mailing List within ten (10) business days after receipt of such request. You may
establish additional terms and conditions that may be applied to persons subscribed to
Your Mailing Lists.
If You register with a Mailing List, You acknowledge that the owner of the mailing
list may remove Your email address from such Mailing List, in its discretion and at
any time, and that Your participation in such Mailing List may be subject to
additional terms and conditions that may be changed from time to time.
ListLynx may include in every email sent by any ListLynx Service a statement similar
to the following: "Powered by ListLynx".
4. LIMITATIONS ON YOUR USE OF ListLynx SERVICES
ListLynx Services are provided to assist You with the operation of Your business.
Your right to use the ListLynx Service is limited to You, Your company and its
employees. You are solely responsible for Customer Content and all use of Your
ListLynx account. ListLynx reserves the right, but is not obligated, to monitor
or to review Customer Content and to monitor your compliance with these Terms
of Service. ListLynx reserves the right in its sole discretion to: (a) refuse
to provide ListLynx Services if You violate these Terms of Service, and/or
(b) edit, refuse to post, or remove any Customer Content that violates the
Terms of Service, without notice at any time.
You may not: (a) restrict or inhibit any other user from using and enjoying such
user's rights in ListLynx Services, or (b) interfere with or disrupt our ListLynx
Servers or servers or any network connected to ListLynx Services.
In addition, You may not use the ListLynx Services to:
send unsolicited bulk email, for commercial or non-commercial purposes.
Unsolicited bulk email is defined as email sent to more than 10 individuals
without their permission;
rent, lease, license, grant a security interest in, or otherwise transfer or
sublicense Your rights hereunder to any third party;
defame, libel, slander, impersonate, abuse, harass, threaten, invade the
privacy of or otherwise violate or infringe the legal rights (including the
rights of privacy and publicity) of any other person;
conduct, promote or forward illegal contests, pyramid schemes, chain letters,
unsolicited or unauthorized advertising, promotional materials, or multi-level
or illegal marketing campaigns;
harm minors in any way;
publish, post, distribute, disseminate, advertise or link to any: (i) content,
site, topic, name, material or information which is inappropriate, profane,
defamatory, libelous, slanderous, infringing, obscene, indecent, or which
contains nudity or adult content; (ii) software, content or other material
protected by intellectual property laws, copyright licenses, rights of privacy
or publicity, or other proprietary rights, unless You own or control such rights
or have received all necessary consents for Your publication, distribution, or
linking of such software and other materials; (iii) software, content or other
material that contains viruses, worms, corrupted files, cracks or that may or
are intended to damage the operation of or render inoperable another's computer,
hardware, software, security measures or system or other programs written to
defeat the security measures of any computer, system or programs; (iv) software,
content, other material or Web site that constitutes "hate speech",
whether directed at an individual or a group, and whether based upon the race,
sex, creed, national origin, religious affiliation, sexual orientation or language
of such individual or group;
sell, offer to sell, distribute, promote, facilitate, disseminate or link to any
sites for marketing, sales, promotion, facilitation or distribution of: firearms;
explosives; ammunition; liquor; tobacco products; illegal gambling (including gambling
in connection with sporting events); food that is not packaged or does not comply with
all applicable laws for sale to consumers by commercial merchants; illicit drugs,
pharmaceuticals and controlled substances; counterfeit, pirated or stolen goods;
any goods or services that infringe or otherwise violate a third party's rights
including copyright, patent, trademark, or rights of publicity or privacy; goods
that are considered indecent, obscene or pornographic; Nazi memorabilia; registered
or unregistered securities; goods or services that You cannot legally sell; goods
which are misrepresented or which do not in fact exist; fraudulent goods; or any
other illegal activity;
harvest or otherwise collect information about third parties, including email
addresses, without the express consent of such third parties;
violate any applicable government laws or regulations.
5. USE AND OWNERSHIP OF SOFTWARE
Subject to the terms and conditions of this Agreement, ListLynx grants You, and
You accept, a nontransferable and nonexclusive license to use in object code form
only any software used in connection with ListLynx Services or made available to
download on ListLynx sites (the "Software") solely for Your purposes
using Your data, and not for the benefit of any third party (unless otherwise agreed
in writing by ListLynx). You may use and access the Software made available over
the Web only through authorized ListLynx web sites. You agree to use reasonable
security measures to minimize the risk of unauthorized access to and use of the
Software.
The Software may be used and accessed only by You using the Software for its
intended purpose while doing Your work.
You acknowledge that ListLynx is the sole owner of all intellectual property
rights in and to the Software and all web sites provided by ListLynx in
connection with the ListLynx Services (the "Sites"), including but
not limited to the structure, organization, design, algorithms, methods, templates,
data models, data structures, logic flow, and screen displays associated therewith.
All customizations, enhancements, modifications and new code made available to You
pursuant to this Agreement shall be deemed "Software" hereunder and
shall be owned by ListLynx. Except as expressly authorized in this Agreement,
You will not copy, modify, display, rent or unbundle the Software. In addition,
You will not reverse engineer, decompile or disassemble the Software, and will
not otherwise attempt to reconstruct or discover the source code for the Software.
The Software and the Sites (collectively, the "Licensed Product") shall
be used only to You for Your sole and exclusive benefit, and shall not be used to
provide time-sharing or other similar services for the benefit of any third party.
ListLynx reserves all rights in the Licensed Product not expressly granted to You
hereunder.
Your use of Software made available for downloading by ListLynx may also be
governed by the terms of the end user license agreement, if any, which accompanies
or is included with the Software ("License Agreement"). To the extent
that the License Agreement conflicts with the Terms of Service, the terms of the
License Agreement shall govern Your use of the Software. You may not install or use
any Software that is accompanied by or includes a License Agreement unless You first
agree to the License Agreement. In addition, You shall keep intact all and may not
alter any copyright and other proprietary notices contained in the Software. WITHOUT
LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR
LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. You
acknowledge that the Software, and any accompanying documentation and/or technical
information, is subject to applicable export control laws and regulations of the USA.
You agree not to export or re-export the Software, directly or indirectly, to any
countries that are subject to USA export restrictions. All software downloaded or
otherwise obtained by the U.S. Government is provided with the commercial license
rights and restrictions described elsewhere herein.
6. FEES
Some products and services available through or in connection with ListLynx require
that You purchase a subscription or otherwise pay a fee. You are solely responsible
for all charges, fees, duties, taxes, and assessments arising out of any use of Your
ListLynx account by You or anyone else using Your account. ListLynx reserves the
right to modify the fees charged for ListLynx Services from time to time, provided
that such new fees shall not take effect earlier than thirty (30) days after ListLynx
provides notice to You of such modified fees.
Except as expressly set forth in this Agreement, ListLynx is not required to refund
to You any amounts paid hereunder. It is Your responsibility to notify ListLynx if
Your credit card has changed or has expired and to make appropriate changes or Your
service may be disconnected or interrupted.
7. CHANGES TO SERVICES, TERMINATION
ListLynx may change any of the ListLynx Services at any time and from time to time
without notice, including terminating the offering of any ListLynx Service altogether.
In such event, ListLynx will provide You with a pro-rata refund of any pre-paid fees
associated with such ListLynx Service.
This Agreement is effective until terminated. Either party may terminate this
Agreement upon thirty (30) days written notice to the other party. ListLynx
may terminate or suspend this Agreement immediately if in ListLynx's sole
judgment You breach any of the terms and conditions of this Agreement. All
provisions of this Agreement relating to payment; disclaimers; limitation of
liability; confidentiality; and ListLynx's proprietary rights shall survive
termination or expiration of this Agreement.
8. LINKS TO THIRD PARTY SITES
Links within the ListLynx service may let You leave the ListLynx site. You
acknowledge that the linked sites are not under the control of ListLynx and
that ListLynx is not responsible for the contents or operation of such linked
sites or any link contained in such linked site, any changes or updates to such
sites, or any form of transmission received from any linked site. ListLynx is
providing these links to You only as a convenience, and the inclusion of any link
does not imply endorsement by ListLynx of the linked site or any association with
their operators.
9. LICENSE YOU GRANT TO ListLynx
ListLynx does not claim ownership of any Customer Content. However, You grant
ListLynx a royalty-free license to use (including, without limitation, the
rights to: copy, distribute, transmit, publicly display, publicly perform,
reproduce, edit, translate, sublicense and reformat Customer Content, and to
publish Your name in connection with Customer Content) Customer Content only in
connection with the operation and promotion of ListLynx Services. You also grant
ListLynx the right to publish Your name in connection with any such use. No
compensation will be paid or due You with respect to ListLynx's or its sublicensee's
use of Your Customer Content.
You grant ListLynx permission to use screen shots of any Web page that contains
a link to ListLynx in ListLynx promotional materials, and represent and warrant
that You have sufficient authority to grant the foregoing rights.
10. LIMITATIONS OF LIABILITY AND DISCLAIMERS
The information, software, products, services and other material included in or
available through ListLynx Services may not be complete, and may include
inaccuracies or errors, and may also be modified, discontinued or deleted from
time to time without notice. Advice, information, products, services or other
materials received via ListLynx Services should not be relied upon for personal,
medical, legal, business, financial or other decisions and is not intended to
replace the advice of appropriate and qualified professionals.
ListLynx warrants that it will use commercially reasonable efforts to provide the
ordered ListLynx Services in accordance with the terms and conditions in the
applicable order form. Otherwise, ListLynx makes no guarantees of any kind
regarding the dependability, accuracy, security, timeliness or availability of the
ListLynx Services. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ALL ListLynx SERVICES
ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND ListLynx AND ITS
RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, WITH REGARD TO THE ListLynx SERVICES, INCLUDING BUT NOT LIMITED TO ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.
IN NO EVENT SHALL ListLynx OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ListLynx OR ANY OF
ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, ListLynx
OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR:
DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF ListLynx SERVICES, OR
WITH THE DELAY OR INABILITY TO USE ListLynx SERVICES; IF YOU ARE DISSATISFIED WITH
ANY PORTION OF List Lynx SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE
AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING List Lynx SERVICES.
Without limiting the foregoing, ListLynx is not responsible for any of Your data
residing on ListLynx hardware or systems, including such hardware or systems
provided to ListLynx by third parties. You are responsible for maintaining and
backing-up Your data and information that may reside on List Lynx hardware or
systems, including such hardware or systems provided to ListLynx by third parties,
whether or not such information is produced through the use of List Lynx, including
all Customer Content.
ListLynx is not liable for Your actions with Your customers or vendors, or the use
of their information, or for any other actions arising from Your use, or the use of
other parties to whom You have given access to Your List Lynx information, through
the use of ListLynx Services.
ListLynx is not involved in any transaction between You and Your buyer or seller or
other third parties with whom you may have transactions through Your web site or
between You and any user of any products or services offered or provided by You or
by a third party through any ListLynx Service. ListLynx is not responsible for
screening, censoring or otherwise controlling your Customer Content, or any listings
or transactions offered or conducted via your Customer Content. You are deemed to
have a direct commercial relationship with each third party that purchases goods or
services from or undertakes any other transaction with You. ListLynx is not acting
as Your or any third party's agent in connection with the operation of ListLynx
Services. Further, because List Lynx is not involved in any orders or other
transactions between You and other users of List Lynx or other marketplace forums,
List Lynx cannot and will not be involved in resolving any disputes relating to any
completed or uncompleted transactions or the purchase or sale of listed goods or
otherwise.
11. INDEMNITY
You agree to defend, indemnify and hold ListLynx and its suppliers harmless from
and against any and all claims, losses, liability costs and expenses (including
but not limited to attorneys' fees) arising from Your violation of these Terms of
Service, or any third-party's rights, (including, without limitation, infringement
of any copyright, violation of any proprietary right and invasion of any privacy
rights). These obligations will survive any termination of Your relationship with
ListLynx or Your use of ListLynx Services.
12. ACCESS RESTRICTION; ACCOUNT SECURITY AND PASSWORDS
You may not use a name in connection with operating Your List Lynx account that
is confusing or misleading to participants, or otherwise impersonate or deceive
participants with respect to Your identity.
You are responsible for safeguarding the confidentiality of Your account information
(including password(s) and user name(s) issued to You) and for any use or misuse of
Your account or List Lynx Services resulting from any third party using a password
or user name issued to You. You agree to notify List Lynx immediately of any known
or suspected unauthorized access to or use of Your account, Your password, the
password of any individual user to whom You have issued a login ID or any other
breach of security or misuse of the List Lynx known to or suspected by You. You
may change Your password at any time by following instructions on the ListLynx
web site.
You hereby authorize ListLynx to rely on any data, notice, instruction or request
furnished by You to ListLynx, or that ListLynx reasonably believes to have been
furnished by You. You are solely responsible for maintaining the confidentiality
of Your account information and monitoring usage of Your account. ListLynx is not
responsible for fraud of participants or of other users of your account.
13. PRIVACY; YOUR CUSTOMER DATA
ListLynx will not use Your customer data or Your customer contact list for any
purposes other than those intended by the List Lynx Service. Your customer
information will not be shared with any other parties, unless you are also
subscribing to a ListLynx Service where one of the features of such service
is the sharing of customer information between services. List Lynx will not
use Your customer information for the purpose of sending unsolicited commercial
email to such customers. For more information about List Lynx's privacy and
information practices, please see ListLynx's Privacy Statement.
14. GENERAL
These Terms of Service are governed by the laws of the State of Pennsylvania,
U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue
of courts in Lancaster County, Pennsylvania, U.S.A. in all disputes arising out
of or relating to the use of the ListLynx Services.
You agree that no joint venture, partnership, employment, or agency relationship
exists between You and ListLynx as a result of these Terms or Service or use of
ListLynx Services.
ListLynx's performance of this Agreement is subject to existing laws and legal
process, and nothing contained in these Terms of Service are in derogation of
List Lynx's right to comply with governmental, court and law enforcement requests
or requirements relating to Your use of List Lynx Services or information provided
to or gathered by ListLynx with respect to such use.
If any part of these Terms of Service is determined to be invalid or unenforceable
pursuant to applicable law including, but not limited to, the warranty disclaimers
and liability limitations set forth above, then the invalid or unenforceable provision
will be deemed superseded by a valid, enforceable provision that most closely matches
the intent of the original provision and the remainder of these Terms of Service shall
continue in effect.
Unless otherwise specified herein, these Terms of Service, the Anti-Spam Policy
and the Privacy Statement constitute the entire Agreement between the user and
ListLynx with respect to ListLynx Services and they supersede all prior or
contemporaneous communications and proposals, whether electronic, oral or written,
between the user and ListLynx with respect to ListLynx Services.
ListLynx reserves the right to disclose any information, content, or materials as
necessary to satisfy any applicable law, regulation, legal process or government
request or in accordance with List Lynx's Privacy Statement.
Any rights not expressly granted herein are reserved by ListLynx, including all
legal and equitable remedies available to List Lynx upon Your violation of any
of these Terms of Service.
15. TRADEMARKS
ListLynx is a service mark of ListLynx Software, Inc. The names of actual
companies and products mentioned herein may be the trademarks or service
marks of their respective owners.
© 2004-2005 ListLynx Software, Inc. All Rights Reserved.
Revision Date: March 05, 2005
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