Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE AND TO THE PRODUCTS. BY USING THIS WEB SITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEB SITE OR THE PRODUCTS.
Incontrol Marketing Ltd. ("Incontrol Marketing") and its relevant VAR’s
provide organisations with a variety of tools and resources to collect visitor
email addresses and to create, launch, and manage online email campaigns (the
"Email Marketing Product"), and a variety of related offerings, including email
archiving and image hosting services. The Email Marketing Product and any
related offerings are referred to in these Terms and Conditions of Use as the
“Products). Incontrol Marketing’s Products may not be used for the sending of
unsolicited email (sometimes called "spam"). See our Anti Spam Policy below,
which is incorporated into these Terms and Conditions of Use by reference.
1. Copyright and Trademark Information
Copyright © 2003-2010 Incontrol Marketing Ltd. All Rights Reserved.
This web site, and the information which it contains, is the property of Incontrol Marketing and its affiliates and licensors, and is protected from unauthorised copying and dissemination by UK copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "Incontrol Marketing" and the Incontrol Marketing logo are registered trademarks of Incontrol Marketing Ltd. under the applicable laws of England and/or other countries. Other Incontrol Marketing product or service names or logos appearing in this Site are either trademarks or registered trademarks of Incontrol Marketing Ltd. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of Incontrol Marketing’s trademark or other intellectual property rights concerning that name or logo.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement (as defined in Section 3 below), you hereby represent, acknowledge and agree that:
3. Products and Support
If you are accessing or using the Products through a Third Party Service, you agree and acknowledge you use such Third Party Service at your own risk. You further agree and acknowledge that Incontrol Marketing may terminate such Third Party Service’s ability to interact with the Products at any time, with or without notice, and in Incontrol Marketing’s sole discretion, with no liability to you or the third party.
4. Free Trial; Fees and Payment
4.1 Fees for Email Marketing Product. For the Email Marketing Product, once you have completed any free trial period or you have exceeded any free subscriber limit, you will be subject to monthly subscription fees in accordance with the Fee Schedule and related information (the "Fee Schedule"). You will be required to submit payment monthly in advance for the Email Marketing Product. Access to the Email Marketing Product will be disabled until payment is received. Fees will be billed monthly even if you are not actively using the Email Marketing Product. If selected by you, you will also be billed for related offerings.
4.2 Fee Schedule. The Fee Schedule is subject to change at any time at the discretion of Incontrol Marketing or its VAR. Incontrol Marketing or its VAR will use good faith efforts to notify you via email prior to the effectiveness of any change to the Fee Schedule. If you receive special discounts through a marketing partner, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case Incontrol Marketing's standard rates will apply. Incontrol Marketing may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account.
4.3 Payment. Payment for Products are payable in UK Sterling. Amounts paid for the Products are not refundable.
5. Email, Permission Practices, Image Hosting & Prohibited Content
5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. Without limiting the foregoing, you agree that you shall not utilise the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. Incontrol Marketing, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Incontrol Marketing will terminate your use of its Products if Incontrol Marketing determines that your level of spam complaints is higher than industry norms.
5.3 Footers. For every email message sent in connection with the Products, you acknowledge and agree that Incontrol Marketing may add an identifying footer stating "Email Marketing by Incontrol Marketing," "Powered by Incontrol Marketing" or a similar message.
5.4 Images. Images hosted by Incontrol Marketing on Incontrol Marketing controlled servers may only be used in connection with the Products and for no other purpose whatsoever.
5.5 Prohibited Content. Incontrol Marketing prohibits the use of the Products or web site by any person or entity that:
5.6 Right to Disable Access. Incontrol Marketing, at its own discretion, may immediately disable your access to the Products without refund if Incontrol Marketing 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 this web site, and you are not granted a license to any software or any part thereof by this Agreement.
6.2 Compliance with Laws; Monitoring. Although Incontrol Marketing has no obligation to monitor the content provided by you or your use of the Products, Incontrol Marketing may do so and may block any email messages, remove any such content or prohibit any use of the Products that Incontrol Marketing believes may be (or is alleged to be) in violation of this agreement.
6.3 Indemnification. You hereby agree to defend, indemnify and hold harmless Incontrol Marketing 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) arises from your activities or postings on the Incontrol Marketing Community, (iv) otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that Incontrol Marketing has the right to seek damages when you use the Products 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.
6.4 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to Incontrol Marketing. Incontrol Marketing may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of Incontrol Marketing, Incontrol Marketing may share your information with the marketing partner and the marketing partner may share related information with Incontrol Marketing. Except as described above Incontrol Marketing will not provide your information, including your contact and account information, to third parties who you have not authorised to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your Incontrol Marketing account was terminated from due to unsolicited commercial email being sent from your Incontrol Marketing account. Incontrol Marketing will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists.
6.5 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party, you agree that such submission is non-confidential for all purposes.
You may terminate this Agreement at any time by contacting Incontrol
Marketing Customer Support or their VAR. There are no refunds for any fees paid.
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. INCONTROL MARKETING 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 INCONTROL MARKETING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or non-performance of the Products shall be for Incontrol Marketing 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 INCONTROL MARKETING 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 "INCONTROL MARKETING") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF INCONTROL MARKETING 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, INCONTROL MARKETING 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 INCONTROL MARKETING 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 INCONTROL MARKETING 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. Links to Third-Party Web Sites
This web site may contain links to non- Incontrol Marketing web sites. A link to any non- Incontrol Marketing web site does not imply that Incontrol Marketing endorses or accepts any responsibility for the content or use of such web site.
11. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Incontrol Marketing of that third party or of any product or service provided by a third party.
12. Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from this web site or the Products infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting Incontrol Marketing’s Customer Support Department and providing the following information:
Customer Support Manager
In an effort to protect the rights of copyright owners, Incontrol Marketing maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.
13. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. Incontrol Marketing will accept the instructions of any individual who claims to be authorised 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. Incontrol Marketing has no knowledge of your organisational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. Incontrol Marketing 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.
14.1 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.
14.2 Incontrol Marketing 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.
14.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Incontrol Marketing in any respect whatsoever.
14.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and legal fees.
14.5 The Agreement shall be governed by the laws of England and Wales without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the English courts.
If you have any questions about the rights and restrictions above, please
contact Incontrol Marketing by email at
Revised September 2009
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