VerticalResponse Classic Email and Survey Terms of Service

VerticalResponse provides a collection of tools and resources to create, launch, and manage online email marketing campaigns (the “Email Services”) and surveys (the “Survey Services”. The Email Services and Survey 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 this web site (the “Customer”), or any other web site that has authorization to sublicense or provide the Services, along with any amendments thereto and any operating rules or policies that may be published from time to time by VerticalResponse.

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE OR ANY OTHER AFFILIATED WEB SITE. BY USING THIS WEB SITE OR ANY OTHER AFFILIATED WEB SITE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THIS WEB SITE OR ANY OTHER AFFILIATED WEB SITE.

  1. Services and Support
    1. The Services are provided subject to the following terms and conditions and any operating policies that VerticalResponse may establish (the “Agreement”). VerticalResponse may make changes to this Agreement, and continued use of the Services constitutes Customer’s acceptance of any such changes. In addition, when using particular VerticalResponse Services, Customer and VerticalResponse shall be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time. The Agreement includes our Postcard Terms of Service, Privacy Policy and Anti-SPAM Policy posted at www.verticalresponse.com.
    2. 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.
    3. The Services provide corporate web sites, small business web sites, and community sites the tools to sign up web site visitors, collect and retrieve visitor sign-up data, develop and execute simple interactive marketing communications with visitors, and obtain customer feedback through the use of surveys.
    4. Customer must 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. As part of the registration process, Customer will identify an email address and password for Customer’s VerticalResponse 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, VerticalResponse reserves the right to refuse registration of accounts, or cancel an existing account, that it deems to be inappropriate.
      1. By signing up for the Service, Customer consents to receive, at the Customer provided telephone number, live and/or pre-recorded messages from or on behalf of VerticalResponse regardless if such phone number is or becomes part of any State or Federal “Do Not Call” list. Customer has the ability to opt out at any time. Customer acknowledges that the information they provide is accurate and their own.
    5. From time to time, VerticalResponse may amend the Agreement, in its sole discretion, by posting updated versions of the Agreement at www.verticalresponse.com or by notifying Customer by other means. All such modifications to the Agreement shall become effective upon the posting of the revised Agreement to www.verticalresponse.com or by the receipt of notification of a change to the Agreement by the Customer.
  2. Restrictions and Responsibilities
    1. 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 VerticalResponse; or remove any proprietary notices or labels.
    2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with VerticalResponse’s Privacy Policy and Anti-Spam Policy as published at www.verticalresponse.com or otherwise furnished to Customer and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws).
    3. Customer may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email or surveys 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, surveys or other communications from Customer. The agreement of a person or entity to participate in a survey does not constitute a valid consent to receive correspondence from Customer to such person or entity. Consent to receive correspondence from Customer shall be obtained through an opt-in link contained within the body of the survey. Customer is solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. VerticalResponse, 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. VerticalResponse may terminate Customer’s use of the Services if VerticalResponse determines that the level of spam complaints is higher than industry norms.
    4. Customer agrees that each email sent by Customer in connection with the Services shall contain the VerticalResponse “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 VerticalResponse, and all payments previously paid to VerticalResponse shall be forfeited by Customer at the time of termination.
    5. Customer agrees that each email sent by Customer in connection with the Services shall contain a link to the then current Privacy Policy, unless Customer has obtained specific authorization from VerticalResponse to remove such link. Failure to comply with this requirement may result in a termination of Customer’s account by VerticalResponse.
    6. Subject to the posted terms and conditions, Customer may upload images hosted by VerticalResponse into their email and postcard campaigns, and within the body of surveys. See the Postcard Terms of Service that specifically addresses VerticalResponse’s policies regarding postcard campaigns. Any images hosted by VerticalResponse are only to be used in conjunction with the Services, and Customer is expressly prohibited from using the images for any other purpose.
      1. Customer is prohibited from using images within an email, survey or postcard campaign to:
        • Sublicense, distribute, transfer or assign any images in connection with any other product except for a VerticalResponse 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 VerticalResponse 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.
    7. For every email message sent or survey launched in connection with the Services, Customer acknowledges and agrees that the Services shall automatically add an identifying footer stating “Powered by VerticalResponse®” or a similar message, unless Customer has obtained specific authorization from VerticalResponse to remove such identifying footer.
    8. In using the varied features 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 VerticalResponse. VerticalResponse 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 VerticalResponse, all Customer information obtained by such partner may be shared with VerticalResponse. VerticalResponse may also share any Customer information with such partners. VerticalResponse will not provide information to companies Customer has not authorized, and VerticalResponse will not permit the companies that get such information to sell and redistribute it without Customer’s prior consent.
    9. Customer hereby agrees to indemnify and hold harmless VerticalResponse 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 VerticalResponse has no obligation to monitor the content provided by Customer or Customer’s use of the Services, VerticalResponse 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.
    10. 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.
    11. Customer shall be solely responsible for securely maintaining its user name, password and other account information. VerticalResponse 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 delivers the correct user name and password. VerticalResponse shall have no liability to Customer for any unauthorized use of Customer’s account or the services provided hereunder.
  3. Termination
    1. Customer may terminate this Agreement at any time by sending an email message to support@verticalresponse.comor by sending written notice to, VerticalResponse at 550 Kearny St #710, San Francisco, CA 94108 USA.
    2. VerticalResponse may terminate this Agreement or the Services at any time with or without cause, and with or without notice. VerticalResponse shall have no liability to Customer or any third party because of such termination. Upon termination by either party, no payments from Customer held by VerticalResponse shall be refunded at the time of termination and Customer shall have no recourse against VerticalResponse in relation to non-refunded funds, unused email credits or unused responses remaining (or time left) related to survey or email subscriptions.
    3. Upon termination for any or no reason, VerticalResponse may delete any Customer 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, indemnity, warranty disclaimers and limitations of liability.  Additional fees may apply to Customers who choose to terminate their subscription pricing plan and subsequently choose to reactivate their account under a new subscription pricing plan.
    4. At any time after the date of commencement of the Services by Customer, if Customer has neither sent a postcard nor sent an email under a pay as you go pricing plan (“PAYG Plan”) for more than thirty (30) consecutive days, the account may become inactive. A Customer who is on a subscription pricing plan will be deemed to be inactive when the end of their subscription period has lapsed and no further payments are remitted to VerticalResponse to continue the Services.  When an account is classified (at VerticalResponse’s sole discretion) as inactive, VerticalResponse will use reasonable efforts to notify Customer by email. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SIGNUP CAMPAIGN RESULTS AND SURVEY RESPONSES, MAY BE PERMANENTLY REMOVED FROM THE VERTICALRESPONSE DATABASE.
    5. Customers on a PAYG Plan shall have twelve (12) months from the date of purchase of email credits in which to use all such email credits purchased. After twelve (12) months, all unused email credits will automatically expire, and Customer shall not be entitled to a refund of unused credits nor shall Customer have the right to an extension of time in order to use such unused credits.
  4. Free Trial and Payment Terms
    1. Certain Customers shall be entitled to use the Services on a trial basis as specified on the web site when Customer initially agrees to the use of the Services. A Customer who uses the Services on a free trial basis shall be bound by the Agreement. Customer shall have a finite time period to use the Services on a trial basis. Customer shall not exceed set limits for free email credits in the applicable month related to the Email Services or free survey responses related to the Survey Services. Once the trial period has expired, or the number of free email credits has been depleted related to the Email Services, or the number of free responses has been exceeded related to the Survey Services, as applicable, Customer shall be subject to the payment terms outlined in this section and shall pay for the Services according to the email price list and survey price list.
    2. After the trial period has expired for email credits, Customer may choose to purchase the Email Services on either a PAYG Plan or a subscription pricing plan (the “Email Subscription Plan”).  The PAYG Plan enables Customer to purchase a specified number of email credits to use in connection with the Email Services.  The pricing for the PAYG Plan is described at the email price list.
    3. The Email Subscription Plan offers a Customer the Email Services based on a flat monthly fee described in the email price list. The charges are based upon the number of unique subscribers contained in Customer’s account and the corresponding pricing tier into which such number falls.   A unique email address stored by Customer shall be deemed to be one (1) unique subscriber.  VerticalResponse’s tier based pricing allows for unlimited Customer emails, provided that Customer’s total unique subscribers are below 40,000 subscribers.  Customers with unique subscribers above 40,000 shall be subject to overage fees determined by VerticalResponse if Customer sends total emails in any one month that is greater than four (4) times the number of maximum allowed unique subscribers in Customer’s paid tier.
    4. Email Services customers may elect to switch from their original chosen pricing plan (either the PAYG Plan or the Email Subscription Plan) to the other pricing plan at any time (e.g., if you start with the PAYG Plan, you may switch to the Email Subscription Plan and vice versa).  However, additional fees will apply if Customer subsequently switches back to its original plan.  If a Customer has originally chosen the PAYG Plan, it must use all existing email credits prior to switching into the Email Subscription Plan or it may elect to forfeit those unused credits. The Email Services must be paid in advance prior to Customer’s usage of the Email Services.
    5. The Survey Services are charged on a monthly subscription basis. The monthly subscription fee is based upon the total number of live survey responses that can be viewed during that month. If the number of responses in a given month exceeds the maximum survey responses allowed by Customer’s monthly paid subscription, Customer shall have the option of (a) paying for the incremental responses based on the fee schedule, (b) upgrading to a higher monthly subscription, or (c) deferring the viewing of the responses to the following month, where the views will be counted against that month’s live response allotment.
    6. The Services must be paid in advance prior to Customer’s usage of such Services. Access to the Services shall be enabled once Customer remits payment. Access to the Services shall be disabled should Customer become delinquent in paying the monthly subscription fees if Customer is purchasing Email Services or Survey Services on a subscription pricing plan. If Customer is on a monthly subscription plan, Customer’s credit card will be charged on the first day of each subsequent month following the initial month of subscription. If Customer is on a prepaid subscription plan, the plan will automatically renew under the same term as the previous plan and Customer’s credit card will be charged on the first day following the expiration of the previous plan. If VerticalResponse modifies its pricing structure, VerticalResponse will use reasonable efforts to notify Customer prior to automatically renewing a prepaid plan.
    7. The price list for the Services is posted on our Web site at www.verticalresponse.com. Prices may change at any time at VerticalResponse’s sole discretion. Customer is responsible for understanding what current prices are in effect at all times. VerticalResponse will use reasonable efforts to notify Customer of any changes to the price list prior to such changes taking effect.
    8. Payment for Services shall be paid with any valid credit card that is accepted by VerticalResponse. VerticalResponse also accepts ACH debits from Customer bank accounts. Checks will only be accepted for prepayments of Services upon approval by VerticalResponse. All payments shall be made in U.S. dollars. Customer authorizes VerticalResponse 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 VerticalResponse is unable to charge Customer’s credit card for Services rendered or future Services purchased. VerticalResponse will attempt to notify Customer of our intent to suspend access to the Services prior to such suspension taking effect.
  5. Prohibited Content
    1. VerticalResponse 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 VerticalResponse, at its sole discretion, may deem to be offensive;
      • Includes images that are not expressly authorized by either VerticalResponse 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 VerticalResponse’s 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.
  6. Warranty DisclaimerCUSTOMER USES THE SERVICES AT ITS OWN RISK. VERTICALRESPONSE 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 VERTICALRESPONSE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
  7. Limitation of LiabilityNOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR PERSONAL INJURY OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY VERTICALRESPONSE, VERTICALRESPONSE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), DIRECTORS, OFFICERS, AFFILIATES, INSURERS, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF VERTICALRESPONSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR FRAUD OR WILFUL MISCONDUCT, VERTICALRESPONSE’S AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIMS OF ANY TYPE OR NATURE HEREUNDER SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY CUSTOMER TO VERTICALRESPONSE DURING THE TWELVE MONTHS PRIOR TO SUCH CLAIM.
  8. Export of Services or Technical DataCustomer 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.
  9. Miscellaneous
    1. 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.
    2. 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, except as otherwise provided herein.
    3. 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 VerticalResponse in any respect whatsoever.
    4. 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.
    5. This Agreement shall be governed by the laws of the State of California, 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 San Francisco, California, USA.
    6. We reserve the right to modify our pricing and we will use reasonable efforts to notify you by email when this occurs. Our most current pricing will always be available on our website at www.verticalresponse.com.

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