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E-mail Marketing Terms of Use

Current as of September 8, 2017

Your or the entity you represent (“you” or “your”) use of WorkWise, LLC’s (“WorkWise” or “Company”) email functionality inside of the ONCONTACT Application Software (“Email Marketing Software”) is governed by the terms and conditions contained in this Terms of Use Agreement (“Terms of Use”) and the ONCONTACT Hosting Terms and Conditions (“Agreement”) available online at: www.aptean.com/aptean-crm-hosting-subscription-agreement. This Terms of Use is incorporated into the Agreement by reference and is binding and effective upon acceptance for all Email Marketing Software users and licensees who accept this Terms of Use by executing the Agreement, executing an instrument of adherence to this Terms of Use, or other electronic click-through methods (“Acceptance”). For all other users, your use and continued access to the Email Marketing Software constitutes your agreement to this Terms of Use and to be bound by them.

Acceptance of Terms of Use

This Terms of Use is an electronic contract that sets out the legally binding terms of your use of the Email Marketing Software. This Terms of Use may be modified by the Company from time to time, in its sole discretion without notice to you. Such modifications are effective upon posting by the Company on www.aptean.com/email-marketing-terms-of-use (the “Site”).

By using the Email Marketing Software under this Terms of Use and the Agreement as a permission based email marketing tool, you agree to the provisions, terms, obligations, and conditions contained in this Terms of Use.

You have the right to receive this Terms of Use in non-electronic form. You may request a non-electronic copy of this Terms of Use either before or after you accept them as detailed above. To receive a non-electronic copy of this Terms of Use, please contact us online or send a letter and self-addressed stamped envelope to:

Aptean

Attn: Email Marketing Terms of Use

4325 Alexander Dr #100

Alpharetta, GA 30022

In order to access and retain this electronic Terms of Use, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Terms of Use, you may save it into any word processing program.

These Terms and Conditions May Change

The Company reserves the right to update or modify the Terms of Use at any time without prior notice. Your use and continued use of the Email Marketing Software following any such change is expressly contingent on your acceptance of any updated or modified Terms of Use and constitutes your agreement to follow and be bound by the terms and conditions as changed. For this reason, we encourage you to regularly review this Terms of Use on this Site.

Term

This Terms of Use will remain in full force and effect while you use the Email Marketing Software and will terminate concurrently with your rights to utilize the software you licensed under the Agreement.

Termination for Violation of this Terms of Use

The Company has a zero tolerance spam policy. The Company has the right to terminate your license/right to use the Email Marketing Software if you send unsolicited email messages or otherwise violate this Terms of Use.

Email Service

Use of the Email Marketing Software requires your own email service credentials. Amazon Simple Email Service (SES) is required to track email statistics such as deliveries, bounce backs and complaints in the Email Marketing Software. An SMTP email service may be used if those email statistic features are not needed.

The Company will assist you with establishing your credentials for Amazon Simple Email Service (SES). Your credentials for Amazon Simple Email Service (SES) will be available as long as your Subscription Period is in effect.

Use of Amazon Simple Email Service (SES) means you agree to the terms for Amazon Simple Email Service contained in the AWS Service Terms document (https://aws.amazon.com/service-terms/) with references to the AWS Customer Agreement (https://aws.amazon.com/agreement/) and AWS Acceptable Use Policy (https://aws.amazon.com/aup/).

User/Licensee Responsible for Compliance with all Laws

You are responsible for evaluating whether or not the Email Marketing Software is legal to use in the manner you either use it in or intend to use it in. You are responsible for complying with all rules, regulations, statutes, and laws, at the municipal, state, federal, and international level as the case may be that govern email marketing, data protection, disclosure requirements, advertising or the use of services similar to the Email Marketing Software (“Laws”).

The Email Marketing Software is subject to U.S. export controls and may not be exported (by physical or electronic means) without first complying with all applicable import/export laws and regulations.

Anti-Spam Policy

The Email Marketing Software assists in the delivery of user content to email addresses inputted into the Email Marketing Software by a user/licensee of the Email Marketing Software. While the Company’s Email Marketing Software assists a user/licensee with the email transmission of various content, neither the Company nor the Email Marketing Software actually sends the content via email on the user’s/licensee’s behalf. Instead it is the user/licensee themselves/itself that actually sends the emails as the sender as that term is defined in the Can-Spam Act of 2003 and any rules or regulations adopted thereunder or other similar laws existing in other jurisdictions or enacted hereafter (the “Sender”). Each user/licensee of the Email Marketing Software must abide by all Laws in addition to complying with the provisions, obligations, and conditions contained in this Terms of Use.

You will cause every email assisted by the Email Marketing Software to clearly define who the Sender is in the “from” line of every email such that the user and the licensee are clearly identified. You represent and warrant that you will not impersonate any person or organization and will not use fake or fictitious names. You will cause every email assisted by the Email Marketing Software to accurately identify the subject of the email in the “subject” line of every email and are prohibited from placing any misleading or deceptive information in the “subject” line.

The Company considers any unsolicited mass or bulk email sent to persons or entities whom have not expressly opted in (provided explicit permission) to receive such emails from the sender to be spam (“Spam”). Utilizing the Email Marketing Software for Spam is expressly prohibited. All licensees and users of the Email Marketing Software expressly agree to only utilize the Email Marketing Software for Opt-In Communications and to not send Spam. “Opt-In Communications” means permission based emails where the email recipient has agreed to receive mass marketing emails from the sender.

An email recipient can opt-in via a website form, a point-of-sale form, via any physical form, or via any other legal means of opting-in to receive mass emails. At a minimum, an opt-in form must include a clear and explicit disclosure of what types of emails will be sent and how often such emails will be sent. Licensees and users of the Email Marketing Software may not use email addresses from purchased, rented, or third party lists even when such email lists have acquired permission from the owners of the email addresses.

Opt-In Communications must include your valid physical address or a valid post office box. Additionally, all Opt-In Communications must include a hyperlink allowing the recipient to unsubscribe from future communications. Immediately upon receiving an un-subscription click (an “Opt-Out”), you must immediately remove the recipient from any mailing list and may no longer contact that recipient with the aid of the Email Marketing Software unless and until that recipient affirmatively opts-in again. You are prohibited from requiring an Opt-Out from providing you any identifying information other than an email address, charging a fee for Opting-Out, or requiring the Opt-Out to complete any other procedures other than clicking the Opt-Out link.

Opt-In Communications do not include emails sent to email addresses collected as part of a survey or an event registration. Opt-In Communications also do not include emails sent to email addresses collected from the “likes” on Facebook® pages, “follows” on Twitter®, or other similar methods of capturing an email address. You may not request any email address to opt-in that you have harvested from other websites, purchased from a third party, or that you have acquired through the means of a pre-checked form that an email recipient has to uncheck in order to not provide you permission. Finally, Opt-In Communications do not include any communications that are impermissible under any Laws.

If you have legally acquired an email address you wish to send Opt-In Communications to and you have legally requested that email address to permit you to send Opt-In Communications and that email address recipient has not affirmatively responded to your confirmation request you are expressly prohibited from sending email communications to that person through the Email Marketing Software. You are prohibited from using the Email Marketing Software to send emails to any public or private media outlets, news organizations or groups, or distribution lists that you have not legally compiled yourself in accordance with the requirements of this Terms of Use.

You acknowledge and agree that your violation of any Laws or this Terms of Use are grounds for the Company to immediately and without notice terminate your license/right to use the Email Marketing Software and constitute a material breach of the Agreement.

You acknowledge and agree that the Company has the right, but not the obligation to monitor large email lists that you import into the Email Marketing Software, bulk emails that the Email Marketing Software assists in sending to a large number of recipients, and any other act or process that would be subject to this Terms of Use. The Company, in its sole discretion, shall determine what constitutes a large email list or a large number of recipients.

Prohibited Content

You are expressly prohibited from utilizing the Email Marketing Software (either directly or indirectly) to assist you in distributing, disclosing, selling or otherwise propagating any morally objectionable (as determined in the sole discretion of the Company) or illegal activity or product under any Laws including, but not limited to the following:

  • Pornographic materials including, but not limited to adult entertainment pictures, media, or links; nudity; services that advertise illegal companionship, prostitution, escorts, or other similar services

  • Drugs, narcotics, or products/paraphernalia related thereto

  • Gambling, betting, poker, or other similar wager activity (legal or otherwise)

  • Personally identifying information or health related information whether subject to HIPAA regulations or not

  • Information, content, or other material to children under the age of 18 (“Minors”)

  • Information, content, or other material that exploits Minors

  • Any harmful code, links, malware, adware, or similar content that could harm systems of a recipient including but not limited to viruses, worms, and trojan horses

  • Spam of any sort

  • Securities offerings, promotions, or solicitations

  • Loan offerings, promotions, or solicitations

  • Fraudulent or misleading materials

  • Any content that is offensive, bigoted, racist, prejudiced, discriminatory or otherwise is obscene, defamatory, libelous, or untrue

  • Any content that promotes violence, illegal activity, or provides information or assistance with the same

  • Intellectual property, confidential information, or trade secrets of others that you do not have the license or right to use or that otherwise violates or misappropriates the intellectual property rights, confidentiality, or trade secret rights of others.

  • Anything illegal or unlawful

Non-Commercial Use

The Email Marketing Software is for the business use of licensees of the Company that have a current and valid license under an Agreement and their authorized users. Illegal and/or unauthorized uses of the Email Marketing Software may be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress.

Intellectual Property

Nothing in this Terms of Use shall confer upon any licensee, user, or third party any right, title, or interest in, or license to any software, written material, or intellectual property owned by the Company or another third party unless specifically set forth in the Agreement.

Disclaimer

The use of the Email Marketing Software requires the emails and content be delivered by via transmission over various networks and requires internet access to work. Your use of the Email Marketing Software is at your own risk. Messages will be transmitted over a medium that may be beyond the control and jurisdiction of the Email Marketing System and the Company. Accordingly, the Company assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with the use of the Email Marketing Software.

You agree that the Company may, in its sole discretion, establish rules and limits related to the number of characters or size of content that may be distributed through the assistance of the Email Marketing Software. You further agree that the Company may, in its sole discretion, establish rules and limits related to the number of messages that may be sent by you in any given time period. Absent an agreement to the contrary signed by the Company, WorkWise limits the number of messages and emails sent with the assistance of the Email Marketing Software to 10,000 emails and messages (in the aggregate) per month per Licensee (the “Limit”).

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE EMAIL MARKETING SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE, BY YOUR ACCEPTANCE OF THIS TERMS OF USE AND YOUR CONTINUED USE OF THE EMAIL MARKETING SOFTWARE, THAT YOUR USE OF THE EMAIL MARKETING SOFTWARE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT OR HARDWARE YOU USE IN CONNECTION WITH YOUR USE OF THE EMAIL MARKETING SOFTWARE.

Limitations of Liability

AS PARTIAL CONSIDERATION FOR YOUR USE OF THE EMAIL MARKETING SOFTWARE, YOU AGREE, TO THE FULLEST EXTENT PERMITTED UNDER LAW, THAT THE COMPANY IS NOT LIABLE TO YOU IN ANY MANNER WHATSOEVER FOR DECISIONS YOU MAY MAKE OR YOUR ACTIONS OR NONACTIONS RELATED TO YOUR USE OF THE EMAIL MARKETING SOFTWARE. YOU ALSO AGREE THAT THE AGGREGATE LIABILITY OF THE COMPANY ARISING FROM OR RELATED TO YOUR USE OF THE EMAIL MARKETING SOFTWARE, REGARDLESS OF THE FORM OF ACTION OR CLAIM (FOR EXAMPLE, CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, PROFESSIONAL MALPRACTICE, FRAUD, INFRINGEMENT OR OTHER BASES FOR CLAIMS), IS LIMITED TO THE ACTUAL AMOUNTS PAID TO THE COMPANY BY YOU FOR THE RIGHT TO USE THE EMAIL MARKETING SOFTWARE IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FACTS THAT GAVE RISE TO YOUR ACTION OR CLAIM.

ADDITIONALLY, TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE COMPANY WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING WITH RESPECT TO YOUR USE OF THE EMAIL MARKETING SOFTWARE, REGARDLESS OF WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (A) USE OR INABILITY TO USE THE EMAIL MARKETING SOFTWARE, (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, OR (C) ANY OTHER MATTER RELATING TO THE TRANSMISSION OF CONTENT OR MESSAGES WITH THE ASSISTANCE OF THE EMAIL MARKETING SOFTWARE.

IN STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS OR EXCLUSIONS THAT YOUR STATE DISALLOWS DO NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

Indemnification

YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, INCLUDING ITS MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUPPLIERS, INFORMATION PROVIDERS AND AGENTS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, RESULTING FROM ANY VIOLATION OF THIS TERMS OF USE, ANY LAWS, OR ANY ACTIVITY RELATED TO YOUR USE OF THE EMAIL MARKETING SOFTWARE (INCLUDING ANY NEGLIGENT, RECKLESS, OR WILLFUL ACTS OR OMISSIONS), INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY LIABILITY, BY YOU OR ANY OTHER PERSON ACCESSING OR USING THE EMAIL MARKETING SOFTWARE WITH YOUR ACCOUNT OR ACCESS CREDENTIALS.

Entire Agreement, Venue, and Choice of Law

The provisions in this Terms of Use and in the Agreement constitute the entire agreement between you and the Company governing your use of the Email Marketing Software. The Terms of Use are intended to supplement the Agreement and to co-exist with the Agreement. In the event of inconsistencies between this Terms of Use and the Agreement this Terms of Use controls with respect to the Email Marketing Software. In all other instances, the Agreement controls.

This Terms of Use shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to choice of law rules. Any litigation arising out of or in connection with this Terms of Use or the Email Marketing Software shall be exclusively in state or federal courts located in Milwaukee County, Wisconsin. If any part of this Terms of Use is ruled to be unenforceable, then such part shall be eliminated or limited to the minimum extent necessary. The remainder of the Terms of Use, including any revised portion, shall remain and be in full force and effect.

The failure of us to exercise or enforce any provision in this Terms of Use will not constitute a waiver of such provision. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Email Marketing Software or this Terms of Use will be filed within one year after such claim or cause of action arose, or be forever barred.

I HAVE READ THIS TERMS OF USE AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.