Terms of Service
Emercury, provides small and medium sized businesses and organizations with (i) 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 (ii) a variety of tools and resources to create, launch, and manage online surveys (the "Survey Product," together with the Email Marketing Product, the "Products"). Emercury’s Products may not be used for the sending of unsolicited email (sometimes called "spam").
See our Anti-Spam Policy.
The following are the terms and conditions for access to this web site and use of the Products. By clicking the ‘I accept’ button on the sign-up page or by logging in to Emercury, you accept these terms and conditions.
1. Copyright and Trademark Information
Copyright © 2002-2013 Emercury® All rights reserved.
This web site, and the information which it contains, is the property of Emercury 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. By way of example only, and not as a limitation, "Emercury" and the Emercury logo are registered trademarks of Emercury, under the applicable laws of the United States and/or other countries. Other Emercury product or service names or logos appearing in this Site are either trademarks or registered trademarks of Emercury, and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of Emercury’s trademark or other intellectual property rights concerning that name or logo.
Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:
- The Products may not be used for the sending of unsolicited email (sometimes called "spam").
- The Products may only be used for lawful purposes.
- The Email Marketing Product will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscriber limit. The E-Mail Marketing Product may also be subject to per message and overage charges. For more information on fees, see Section 4 below and the Fee Schedule.
- The Service Product will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscriber limit or the free survey response limit. The Survey Product may also be subject to per response charges. For more information on fees, see Section 4 below and the Fee Schedule.
- You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.
- 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. Mere agreement of a person or entity to participate in a survey is not consent to receive correspondence from you. For respondents to your surveys, consent to receive other correspondence is evidenced by the respondent opting into the "Join My Mailing List" link in the course of responding to your survey. You hereby covenant that you shall not use any other lists in connection with your use of the Products. You acknowledge and agree that not all 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 Emercury "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
- You will comply with the restrictions on content of e-mail messages and activities using the Products as set forth in this Agreement.
3. Products and Support
4. Free Trial; Fees and Payment
4.1 Fees for Email Marketing Product. For the Email Marketing Product, once you have completed your free trial period or have exceeded the free subscriber limit, you will be subject to monthly subscription fees in accordance with the fee schedule (the "Fee Schedule"). The Fees are based on the highest number of subscribers in your account at any time during the previous month. For purposes of this Agreement, each unique e-mail address will count as one subscriber. In addition, if you have more than 50,000 subscribers in your account, per message Fees will be incurred when the number of messages you send in a month exceeds four times the maximum number of subscribers allowed in your current pricing tier. You will be required to submit payment monthly in advance for the Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Email Marketing Product. Access to the Email Marketing Product will be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Email Marketing Product. If selected by you, you will also be billed for premium image hosting services.
4.2 Fees for Survey Product. For the Survey Product, once you have completed your free trial period or have exceeded the free subscriber limit or the free responses limit, you will be subject to monthly subscription fees in accordance with the fee schedule (the "Fee Schedule"). The Fees are based on the highest number of subscribers in your account at any time during the previous month. In addition to Fees based on the number of subscribers, per response Fees will be incurred when the number of responses received in a month exceeds the maximum number of subscribers allowed in your current pricing tier. You will be required to submit payment monthly in advance for the Survey Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Survey Products. Access to the Survey Product will be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Survey Product.
4.3 Fees for Bundled Email Marketing and Survey Products. For the Bundled Email Marketing and Survey Products, once you have completed your free trial period or have exceeded the free subscriber limit or the free response limit, you will be subject to monthly subscription fees in accordance with the fee schedule (the "Fee Schedule"). The Fees are based on the highest number of subscribers in your account at any time during the previous month. In addition to Fees based on the number of subscribers, per message and per response Fees will be incurred as set forth in Sections 4.1 and 4.2 above. You will be required to submit payment monthly in advance for the Bundled Email Marketing and Survey Products (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Bundled Email Marketing and Survey Products. Access to the Bundled Email Marketing and Survey Products will be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Bundled Email Marketing and Survey Products. If selected by you, you will also be billed for premium image hosting services.
4.4 Fee Schedule; Discounts. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Emercury. The Fee Schedule, including subscriber levels and prices, is subject to change at any time in Emercury's sole discretion. Emercury 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 Emercury's standard rates will apply. Emercury may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account.
4.5 Payment. Payment for Products will be made by a valid credit card accepted by Emercury. Checks will be accepted for prepayments of at least six (6) months. Fees are payable in U.S. dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize Emercury to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period. If Emercury is for any reason unable to effect automatic payment via your credit card, Emercury will attempt to notify you via email and your Emercury account will be disabled until payment is received. Amounts paid for the Products are not refundable.
4.6 Unlimited Use for Qualified Senders. From time to time, the Company may offer unlimited usage of the Service Product and/or the Survey Product to “Qualified Senders”, as such term may be defined by the Company in conjunction with such offer(s), and under such terms as may be imposed by the Company with respect to such offer(s) (the “QS Conditions”). In the event a Qualified Sender fails to meet any of the QS Conditions (as determined by the Company in its sole discretion without the requirement of notice) (a “Disqualifying Event”), such user shall become immediately subject to the use limitations and cost structure applicable to such user’s then-current plan with the Company (including any and all use during any “unlimited usage” periods), including any limitation on the number of emails sent. However, in the event such user is again able to qualify as a “Qualified Sender” for a period of 30 consecutive calendar days after any Disqualifying Event, such user shall again qualify for unlimited use and such other rights as may be afforded a Qualified Sender pursuant to the applicable offer.
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. If you have used the Emercury feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails to that recipient. Without limiting the foregoing, you agree that you shall not utilize 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 cannot copy a Emercury template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. Emails that you send through the Product may generate spam complaints from recipients. As a matter of privacy, Emercury 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 spam complaints in excess of industry norms. Emercury, 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. Emercury will terminate your use of its Products if Emercury 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 Emercury may add an identifying footer stating "Powered by Emercury" or a similar message.
5.4 Use of Images Hosted by Emercury. Images hosted by Emercury on Emercury controlled servers may only be used in connection with the Products and for no other purpose whatsoever.
5.5 Prohibited Content. Emercury prohibits the use of the Products or web site by any person or entity that:
- Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
- Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
- Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam.
- Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
- Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
- Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
- Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
- Promotes, solicits or participates in pyramid schemes or multi-level marketing (MLM) businesses.
- Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
- Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
- Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
5.6 Right to Disable Access. Emercury, at its own discretion, may immediately disable your access to the Products without refund if Emercury 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 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.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by Emercury in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
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. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that Emercury perform such work at its standard professional services rates. Emercury can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
6.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this 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). Although Emercury has no obligation to monitor the content provided by you or your use of the Products, Emercury may do so and may block any e-mail messages, remove any such content or prohibit any use of the Products that Emercury believes may be (or is alleged to be) in violation of the foregoing.
6.4 Indemnification. You hereby agree to defend, indemnify and hold harmless Emercury 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. In addition, you acknowledge and agree that Emercury 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.
6.5 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 Emercury. Emercury 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 licensed the Products as a result of solicitation by a marketing partner of Emercury, Emercury may share your information with the marketing partner and the marketing partner may share related information with Emercury. Emercury 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 Emercury due to unsolicited commercial email being sent from your Emercury account.
6.6 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. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to Emercury or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to Emercury by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to Emercury by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted—Emercury a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
6.7 Use of Links in the Survey Product. In connection with the Survey Product, you hereby agree that you shall only distribute links to the survey via the Survey Product, the Email Marketing Product or as a link on your web site.
You may terminate this Agreement at any time by calling Emercury Customer Support. There are no refunds for any fees paid.
Emercury may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. Emercury shall have no liability to you or any third party because of such termination or action.
Emercury may 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. Emercury will provide upon request 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.
If your account is classified (at Emercury's sole discretion) as inactive for over 120 days, Emercury has the right to permanently delete your subscriber data. Emercury will use good faith efforts to contact you via email prior to taking any permanent removal actions.
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.
EMERCURY 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
EMERCURY 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 Products shall be for Emercury 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 EMERCURY 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 "EMERCURY") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF EMERCURY 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, EMERCURY 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 EMERCURY 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 EMERCURY 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. Restricted Persons; Export of Products or Technical Data
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify Emercury within twenty-four (24) hours, and Emercury shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to Emercury.
You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
11. Links to Third-Party Web Sites
This web site may contain links to non-Emercury web sites. These links are provided to you as a convenience, and Emercury is not responsible for the content of any linked web site. Any non-Emercury web site accessed from this web site is independent from Emercury, and Emercury has no control over the content of that web site. In addition, a link to any non-Emercury web site does not imply that Emercury endorses or accepts any responsibility for the content or use of such web site.
12. 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 Emercury of that third party or of any product or service provided by a third party.
13. Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from this web site infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting Emercury’s copyright agent and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
In an effort to protect the rights of copyright owners, Emercury maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.
14. Open Positions
Emercury may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.
15. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. Emercury 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 e-mail or by phone. Emercury 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. Emercury 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.
16.1 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.
16.2 Emercury 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.
16.3 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 Emercury in any respect whatsoever.
16.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
16.5 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.
If you have any questions about the rights and restrictions above, please contact Emercury by email at firstname.lastname@example.org.