Terms of Use and License SharperEmail.com (herein "SharperEmail") provides small and medium sized businesses a variety of tools and features to collect and catalogue visitor email addresses and to create, launch, and manage online email marketing campaigns (herein “Services”). It is strictly forbidden for this service to be used in the sending of unsolicited email, often referred to as spam. The following are the terms and conditions for use of the Services. By utilizing any part of SharperEmail, you accept all of these terms and conditions.

1. Acknowledgements. Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:

*SharperEmail may not be used for the sending of unsolicited email, often referred to as spam.
*SharperEmail may not be used for unlawful purposes.
*The Services will be subject to recurring monthly subscription fees once you have completed your free trial or have exceeded the message limit during your free trial.
*You agree you will not access or use third party mailing lists in connection with preparing or distributing spam/unsolicited email.
*SharperEmail will not use your subscriber list or any other customer information for any other purposes than those intended with the Services.
*You agree to import, manually add or otherwise use only completely permission-based lists in connection with your use of the Services.
*Every email message sent in connection with the Services must contain the SharperEmail "unsubscribe" link in the footer that allows subscribers to remove themselves from your mailing list or update their preferences.

2. Services and Support

2.1 The Services are provided subject to this Agreement, as it may be amended by SharperEmail, and any guidelines, rules or operating policies that SharperEmail may establish and post periodically (herein "Agreement"), including without limitation SharperEmail’s Email Marketing Privacy Policy, as linked to in the footer of all email generated from SharperEmail. By posting updated versions of the Agreement on the SharperEmail website, or otherwise providing notice to you, SharperEmail may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services in its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the
SharperEmail website

2.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services.

2.3 You must fully complete the registration form online or over the phone in order to use the Services. You must provide true, current, accurate, and complete information about yourself as requested in the registration form. You are responsible for maintaining the security of your account, passwords, and subscriber lists. A working email that you frequently check must be on-file at all times.

3. Free Trial Period, Fees and Payments

3.1 Once your free trial has expired or you have exceeded the free trial sending limit, you will be subject to subscription fees. You will be required to submit payment for Services in the form of a credit card (or alternate pre-arranged method). Access to the Services will be disabled and inaccessible until payment is received.

3.2 Payment for Services will be made by a valid credit card accepted by SharperEmail. SharperEmail currently accepts in US dollars: Visa, MasterCard, and American Express. SharperEmail currently accepts in Canadian dollars: Visa, MasterCard, and American Express. Fees are payable, as per your selection, in either US or Canadian dollars as listed in the fee schedule. Once you have subscribed to the Services, you hereby authorize SharperEmail and its parent organization to charge your credit card for any and all purchases approved from within your account. If SharperEmail is for any reason unable to process your subscription fees via your credit card, SharperEmail will attempt to notify you via email and your account will be disabled until payment is received. Amounts paid for the Services are not refundable.

3.3 Fees will be billed on based on your purchase date in your selected currency (US dollar or Canadian dollar) for Services. The Fees are based on the volume package you select and any add-on services. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by SharperEmail. The Fee Schedule, for both standard subscriptions and add-ons, is subject to change at any time at SharperEmail’s discretion. SharperEmail will attempt to notify you via email prior to the effectiveness of any change to the fee schedule. In many cases, existing subscribers will be able to retain current pricing for 12 months, but that is also at SharperEmail’s sole discretion.

3.4 You acknowledge and agree that you are responsible for paying Fees for all email messages sent through SharperEmail, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by any third party.

3.5 You acknowledge and agree that you are responsible for any add-on fees charged to your account. These are for additional functions used through the Services over and above regular sending fees. These charges will appear on your invoice for the next billing cycle. In the event you cancel your account prior to the next billing cycle, you are still responsible for paying the add-on fees in full. You hereby grant SharperEmail authorization to charge any add-on fees to your credit card.

4. Email, Permission Practices & Image Hosting

4.1 Every email message sent with the Services must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the Email Marketing Privacy Policy. Each aforementioned link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to SharperEmail. You acknowledge and agree that you will not alter, remove, disable or attempt to remove/disable either link. These links are automatically added for you and no special action must be taken to ensure their existence.

4.2 You agree to only import access or otherwise use permission-based lists. If you purchase a list of addresses of people who have not expressly consented to your organization contacting them, this does not constitute consent.

4.3 All new subscribers who had themselves manually to your list must first confirm their intent to subscribe through SharperEmail’s double opt-in system. Prior to the subscriber confirming their intent to enroll in your mailing list by clicking the auto-generated link supplied in an email, you are not to contact them.

4.4 You cannot mail to distribution lists, group lists, newsgroups, or spam email addresses. You cannot copy a SharperEmail template or any other features or functionality from the Services and use them for any purpose other than sending emails from the Service.

4.5 You are responsible for monitoring, correcting, and processing unsubscribe requests within 5 days of receiving such notification. Failure to actively process these request may result in the termination of your account. If you need any assistance with the processing of requests, please contact SharperEmail.

4.6 Images hosted in your online image gallery by SharperEmail may only be used in connection with the Service and for no other purpose whatsoever.

4.7 Occasionally, emails that you send through the Service may generate abuse complaints from recipients. As is congruent with our privacy policy, SharperEmail cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry standards. SharperEmail, in its sole discretion, shall determine whether your level of abuse complaints is within industry standards, and its determination shall be final, binding and conclusive for all purposes under this Agreement.

4.8 If you are found to be hosting prohibited content or distributing prohibited content your account will be terminated.

4.9 SharperEmail may, at its own discretion, immediately disable your access without refund to the Services if SharperEmail believes in its sole discretion that you have violated any of the email and permission practices listed above, or are partaking in any other conduct deemed inappropriate by SharperEmail.

5. Responsibilities and Restrictions

5.1 SharperEmail will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties unless required by law. SharperEmail will, at times, access your subscriber list to help with the management of it.

5.2 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You 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, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.
Unless you are expressly authorized by SharperEmail, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Services or the Software. Violation of these restrictions may result in the termination of this Agreement.

5.3 The Services shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Services or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

5.4 You acknowledge and agree that the Services and the SharperEmail company names and logos and all related product and service names, design marks and slogans, are the property of SharperEmail Incorporated or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of SharperEmail. Your use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale of any rights in the Services, the Software or the Marks.

5.5 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). You agree you will not access or otherwise use third-party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless SharperEmail 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 attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. In addition, you acknowledge and agree that SharperEmail has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. Although SharperEmail has no obligation to monitor the content provided by you or your use of the Services, SharperEmail may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

5.6 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in this jurisdiction or your local area is prohibited. Furthermore, the Services must not be used for purposes outlined in SharperEmail’s Prohibited Content and Commerce Statement, the terms of which are incorporated into this Agreement by reference.

5.7 In using the varied features of the Services, you may provide information (such as name, address, contact information, and other registration information) to SharperEmail. SharperEmail may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you. SharperEmail will not provide information to companies you have not authorized for that purpose unless required by law or if you are terminated from SharperEmail due to unsolicited commercial email being sent from your account.

5.8 For every email message sent in connection with the Services, you acknowledge and agree that the Services may automatically add an identifying footer stating "Powered by SharperEmail" or a similar message or graphic. You agree to fully cooperate with and provide reasonable assistance to SharperEmail in promoting and advertising the Services.

6. Termination

6.1 You may terminate this Agreement at any time by calling or emailing SharperEmail. There are no refunds for any fees paid. Termination will only be effective when receipt of your call or email is confirmed.

6.2 SharperEmail may terminate this Agreement or the Services, or disable your account, in each case at any time with or without cause, and with or without notice. SharperEmail shall have no liability to you or any third party because of such termination or action.

6.3 If your account, at SharperEmail’s sole discretion, is classified as inactive for over 105 days, SharperEmail has the right to permanently remove your subscriber data. SharperEmail will attempt to contact you via email and/or telephone prior to taking any permanent removal actions.

6.4 SharperEmail will delete any of your archived data within 30 days after the date of termination. After termination, you are required to process all unsubscribe requests within 20 days of your last email campaign. SharperEmail, upon request, will provide the list of unsubscribe requests from your last campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

7. Warranty Disclaimer; Remedies. USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. SharperEmail 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 SharperEmail DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. Your exclusive and sole remedy for any failure or nonperformance of the Services shall be for SharperEmail to use commercially reasonable efforts to adjust or repair the Services.

8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL SharperEmail OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, ACCOUNT PROVIDERS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "SharperEmail") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SharperEmail SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, SharperEmail IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF SharperEmail TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

9. Export of Services or Technical Data
You may not remove or export from the United States or Canada or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any laws, restrictions, or regulations of the United States or any other applicable country.

10. Miscellaneous

10.1 SharperEmail and you agree that the 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 the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

10.2 If any provision of the 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.

10.3 No partnership, agency, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind SharperEmail in any respect whatsoever.

10.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.

10.5 It is the intention of the parties to this Agreement that this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the state of California, without regard to the jurisdiction in which any action or special proceeding may be instituted.

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