OpenMoves, Inc. (“OpenMoves”) provides businesses and organizations with (i) a variety of tools and resources to collect visitor email addresses and (ii) to create, launch, and manage online email campaigns (the “OM Platform”), and (iii) a variety of services including strategy, design, production, content, and account management. The OM Platform and any related services are referred to in this Agreement as the (“Products”). OpenMoves Products may not be used for the sending of unsolicited email (sometimes called “spam”).
The following are the terms and conditions for access to the OM web site and use of the Products. By logging in to your OpenMoves account or by accessing the OpenMoves services via any API interface, you accept these terms and conditions.
1. Copyright and Trademark Information
OM web site, and the information which it contains, is the property of OpenMoves and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement, Client hereby represent, acknowledge and agree that:
- The Products may only be used for lawful purposes.
- The OM Platform will be subject to monthly subscription fees as well as a setup fee as per Attachment A.
- You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you (“Permission Based Lists”) in connection with your use of the Products.
- You acknowledge and agree that not all email messages sent through use of the Products will be received by their intended recipients.
- Every email message sent by you in connection with the Products must contain the OpenMoves “unsubscribe” link that allows the recipient to remove themselves from your mailing list.
- You acknowledge and agree that you are the sole or designated “sender” of any email message sent by you using the Products.
- You agree that the “subject” line of any email message sent by you using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
- If emails are sent to recipients in the USA they will need to comply with all the CAN-SPAM Act of 2003 and any rules adopted under such act.
3. Fees for OM Platform. For the OM Platform, you will be subject to monthly subscription fees in accordance with the Attachment A and related information. The fees are based on the highest number of emails sent by your account at any time during the previous month. You will be required to submit monthly payment by credit card or bank wire. An annual payment is available at certain discounts as per Attachment A. Access to the OM Platform may be disabled until payment is received.
4. Payment. Payment for Products will be made by a valid credit card accepted by OpenMoves or by wire transfer or ACH. Fees are payable in U.S. dollars.
5. Email, Permission Practices, Image Hosting & Prohibited Content
5.1 Subscriber Opt Out. Every email message sent in connection with the Products must contain an “unsubscribe” link that allows subscribers to remove themselves from your mailing list. Each such 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 OpenMoves. You acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
5.2 Footers. For every email message sent in connection with the Products, you acknowledge and agree that OpenMoves may add an identifying footer stating “Email Marketing by OpenMoves,” “Powered by OpenMoves” or a similar message.
5.3 Use of Images Hosted by OpenMoves. Images hosted by OpenMoves on OpenMoves controlled servers may only be used in connection with the Products and for no other purpose whatsoever.
5.4 Right to Disable Access. OpenMoves, at its own discretion, may immediately disable your access to the Products if OpenMoves believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
6. Restrictions and Responsibilities
6.1 No Rights in Software. This is an Agreement for services and access to the OM web site, 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 Products or any software, documentation, or data related to the Products (“Software”); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party.
6.3 Compliance with Laws; Monitoring. Client shall use the Products only in compliance with this Agreement and regulations under all applicable state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws).
6.4 Indemnification. Client hereby agree to defend, indemnify and hold harmless OpenMoves 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 (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) otherwise arises from or relates to your use of the Products.
6.5 Privacy and data use policy. OpenMoves has no rights to use any of Client’s account data for own or any purposes other than services to the Client according to the entire Agreement , especially email addresses used by Client or any statistics of Client’s account. All data related to the Client’s account is sole property of the Client.
Client may terminate this Agreement at any time by contacting OpenMoves Customer Support. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND OPENMOVES IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
OpenMoves may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case of violation of this Agreement after providing you reasonable notice. In case of permanent account disabling or inactivity OpenMoves must delete all Client’s account related data within 30 days from last active session.
OpenMoves must delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign.
8. Warranty Disclaimer; Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. OPENMOVES DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED “AS IS” AND OPENMOVES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Client’s sole and exclusive remedy for any failure or nonperformance of the Products shall be for OpenMoves to use commercially reasonable efforts to adjust or repair the Products.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL OPENMOVES OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “OPENMOVES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF OPENMOVES 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, OPENMOVES 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 MAXIMUM AGGREGATE LIABILITY OF OPENMOVES TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY OPENMOVES TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. OpenMoves will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by email or by phone, or through a Third Party Service, if any, through which you access the Products. OpenMoves has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. OpenMoves shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.
11.1 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.
11.2 OpenMoves and you 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. 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.
11.3 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
11.4 The Agreement shall be governed by the laws of the State of NY, USA without regard to its choice or law or conflict of law provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in NY, USA.