Terms of Service – Admailr
1.Generally
These terms of service shall govern the use of the Admailr services (the “Services”) by both “Publishers” (newsletter owners/publishers who are accepting advertising) and “Advertisers” (users who provide advertisements for placement).
By using the Services, you agree to these terms (these “TOS” or the “Terms”), and all related policies as may be posted to this site from time to time (collectively, the “Agreement”). If ever in conflict, to the extent of such conflict, these TOS will take precedence over any other terms of the Agreement.
As used in the Agreement, “you” or “Publisher” or “Advertiser”, as applicable, means the individual or entity using the Services, whether as an Advertiser or as a Publisher, or otherwise (and/or any individual, entity or successor entity, agency or network acting on your behalf), “we,” “us” or “Admailr” means Admailr and its affiliated companies, and the “parties” means you and Admailr.
2.Access to the Services
Your use of the Services is subject to your creation and our approval of an Admailr account (an “Account”). We shall, at all times, have the right to refuse or limit your access to the Services, without notice. By submitting using the Services, if you are an individual, you represent that you are at least 18 years of age.
Advertisers: You authorize us and to place your advertising materials and related technology (collectively, “Ads” or “Creative”) as part of the Service provided to Publishers. You are solely responsible for all Ads, all targeting decisions with respect to keywords, categories and descriptions, all properties and/or websites to which Creative directs viewers (e.g., landing pages), and any and all services and/or products relating to the Ads. The Services are an advertising platform through which you authorize Admailr to use certain automated tools to format Ads for placement within Publisher content.
Publishers: By enrolling in Admailr, you permit Admailr and/or its affiliates to serve, as applicable, Ads and other content to your newsletters and similar web-based publications and/or other properties approved by Admailr (each individually a “Newsletters”). In addition, you grant Admailr the right to access, index and cache the Newsletters, or any portion thereof, including by automated means. Admailr provision of the Services with respect to the Newsletters shall at all times be subject to modification or cancellation by Admailr. Publisher shall have the right to determine the Ads to be placed in their Newsletters.
3.Using the Services
You may use the Services only as permitted by this Agreement. Any misuse of the services will not be tolerated and such misuse shall result in restriction from the site and cancellation of your account.
In addition, with respect to Advertisers:
- Advertisers shall not provide Ads containing malware, spyware or any other malicious code or knowingly breach or circumvent any Publisher security protocols or measures.
- Except as otherwise provided herein, either party may cancel any Ad at any time before placement of the Ad, but if Advertiser cancels placement of an Ad after the start date, then Advertiser is responsible for any applicable cancellation fees or penalties.
4.Improvement to the Services; Amendments to the Agreement
At our discretion, we may add or remove functionalities or features of the Services at any time, and we may suspend or stop some or all of the Services. We reserve the right to amend the Agreement at any time. IN such event, we will post such amendment to this page and they shall become immediately effective (unless otherwise indicated in such amendment). If you don’t agree to any amendments to these TOS or to the Agreement, please stop using the Services.
5.Payments
Advertisers: Advertiser agrees to pay all charges incurred in connection with the Service, in immediately available funds, in accordance with such payment terms as required by Admailr. If Admailr does not place Ads as required hereunder, then Advertiser’s sole remedy is to make a claim for advertising credits within the 30-days after notice of such failure is received and confirmed by Admailr. No refunds shall be paid by Admailr.
Publishers: Subject to these Terms, you will receive a payment related to the number of valid clicks on Ads displayed on your Newsletters, the number of valid impressions of Ads displayed on your Newsletters, or other valid events performed in connection with the display of Ads in your Newsletter, in each pursuant to terms established by Admailr.
Except in the event of termination, we will pay you by the end of the calendar month following any calendar month in which the earned balance in your Account equals or exceeds $100. Payments will be calculated solely based on our accounting. Payments to you may be withheld to reflect or adjusted to exclude any amounts refunded or credited to Advertisers and any amounts arising from invalid activity, as determined by Admailr in its sole discretion. Invalid activity is determined by Admailr in all cases and includes, but is not limited to, (i) spam, invalid queries, invalid impressions or invalid clicks on Ads generated by any person, bot, automated program or similar device, including through any clicks or impressions originating from your IP addresses or computers under your control; (ii) clicks solicited or impressions generated by payment of money, false representation, or requests for end users to click on Ads or take other actions; (iii) Ads served to end users whose browsers have JavaScript disabled; and (iv) clicks or impressions co-mingled with a significant amount of the activity described in (i, ii, and iii) above.
If you dispute any payment made or withheld relating to the Services, you must notify us in writing within 30 days of any such payment. If you do not, any claim relating to the disputed payment is waived. If an Advertiser whose Ads are displayed on your Newsletter defaults on payment to us, we may withhold payment or charge back your account.
To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information in your account. You are responsible for any charges assessed by your bank or payment provider.
6.Taxes – Publishers
As between Publishers and Admailr, Admailr is responsible for all taxes (if any) associated with the transactions between Admailr and Advertisers in connection with Ads displayed in your Newsletters. Publishers are responsible for all taxes associated with the Services, other than taxes based on Admailr’s net income. All payments from us to Publishers in relation to the Services will be treated as inclusive of tax (if applicable) and will not be adjusted.
7.Intellectual Property
Except as may be expressly set forth herein, neither you nor Admailr will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors. Admailr grants you a limited, non-exclusive, non-sublicensable license for use of the software provided in connection with the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services, in the manner contemplated by the Agreement. Except as expressly provided in the Agreement, you may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission. You will not remove, obscure, or alter our copyright notice or other proprietary rights notices affixed to or contained within or as part of the Services. We may revoke this license at any time. Any goodwill arising from your use of the Services will be and remain the sole property of Admailr.
We may include your name in our presentations, marketing materials, customer lists and financial reports.
8.Privacy
In using the varied features of the Services, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to Admailr. Admailr 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 Services, or communicate separately with you. If you licensed the Services as a result of solicitation by a marketing partner of Admailr, Admailr may share your information with the marketing partner and the marketing partner may share related information with Admailr. Admailr will not provide your contact information to companies you have not authorized for that purpose unless required by law or unless you are terminated from Admailr due to unsolicited commercial email being sent from your Admailr account, in which case your contact information may be provided to such recipient in order to address such matter.
9.Confidentiality
You agree not to disclose our Confidential Information without our prior written consent. “Admailr Confidential Information” includes: (a) all Admailr software, technology and documentation relating to the Services; (b) click-through rates or other statistics relating to the Services; (c) the existence of, and information about, beta features in a Service; and (d) any other information made available by Admailr that is marked confidential or would normally be considered confidential under the circumstances in which it is presented. Admailr Confidential Information does not include information that you already knew prior to your use of the Services, that becomes public through no fault of yours, that was independently developed by you, or that was lawfully given to you by a third party.
10.Termination
You may terminate the Agreement at any time by completing the applicable account cancellation procedures established by Admailr . Payment made to Publishers shall be made within 90 days after termination.
We reserve the right to terminate the Agreement or otherwise suspend the Services for any reason. If we terminate the Agreement due to your breach or due to invalid activity, we may withhold any unpaid amounts or charge back your account. If you breach the Agreement or we suspend or terminate your account, you will not be allowed to create a new account and you agree not to attempt to do so.
11.Indemnity
Each of you and Admailr hereby agree to defend, indemnify and hold harmless the other (in the case of Admailr, 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 the breach of the Agreement and/or (ii) an violation of law. In addition, you agree to defend, indemnify and hold harmless Admailr, 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 (x) arises from the content or effects of any messages you distribute using the Services or (y) otherwise arises from or relates to your use of the Services s.
12.Representations; Warranties; Disclaimers
You represent and warrant that (i) you have full power and authority to enter into the Agreement; (ii) you are the owner of, or are legally authorized to act on behalf of the user; (iii) you are the technical and editorial decision maker in relation to each user of the Services and that you have control over the way in which the Services are implemented by each such user; (iv) entering into or performing under the Agreement will not violate any agreement you have with a third party or any third-party rights; and (vi) all of the information provided by you to Admailr is correct and current.
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. ADMAILR 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 ADMAILR 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 nonperformance of the Services shall be for Admailr to use commercially reasonable efforts to adjust or repair the Services.
Advertisers: In addition, each Advertiser hereby represent and warrant that (a) it holds, and hereby grants to Admailr, its affiliates and partners, all necessary rights to publish and post the Ads and the Creative and (b) all information and authorizations provided by Advertiser are complete, correct and current.
13.Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL ADMAILR 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 “ADMAILR”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF ADMAILR 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, ADMAILR 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 ADMAILR TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY ADMAILR 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.
14.Miscellaneous
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.
ADMAILR 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.
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 Admailr in any respect whatsoever.
In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
The Agreement shall be governed by the laws of New Jersey, USA 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 state or federal courts located in New Jersey.
