Opfx, Inc. herein Openfax will provide Openfax Communications Services (“Services”), as amended from time to time, to the Openfax customer (“Customer”) identified in the signature block to this Customer Service Agreement (“Agreement”) in consideration of payment based on the rates specified herein, and the promises contained in this Agreement. [Customer and Openfax hereinafter collectively may be known as ‘the parties.”] Openfax provides businesses and organizations a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns. This Service may not be used for the sending of unsolicited email (sometimes called “spam”). The following are the terms and conditions for use of the Services. Use of Openfax Services signifies Customer’s acceptance to these terms and conditions.
Subject in each case to the terms listed in the remainder of this Agreement,
2. Services and Support
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 Customer does not qualify, Customer are not permitted to use the Services.
2.3 Customer must complete the registration form in order to use the Services. Customer will provide true, accurate, current, and complete information about self as requested in the registration form. Customer is responsible for maintaining the security of Customer’s account, passwords, and files.
3. Fees and Payment
3.1 Fees will be billed monthly or Customer’s pre-paid account will be debited for Services.
3.2 Payment for Services will be made by a valid credit card accepted by Openfax. Fees are payable in US dollars. If Customer has previously provided Customer’s credit card for payment, Customer hereby authorize Openfax to charge Customer’s credit card. If Openfax is for any reason unable to effect automatic payment via Customer’s credit card, Openfax will attempt to notify Customer via email and Customer’s Openfax account will be disabled until payment is received. Amounts paid or prepaid for the Services are not refundable.
4. Email, Image Hosting & Permission Practices
4.2 Customer agrees to import, access or otherwise use only permission- based lists (note: purchased lists may not be used; please contact Openfax if Customer have questions).
4.3 If Customer have used the Openfax feature that allows Customer to request a recipient to confirm that Customer 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, Customer agree that Customer shall not send emails to that recipient.
4.4 Customer cannot mail to distribution lists, newsgroups, or spam email addresses. Customer cannot copy a Openfax 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 Customer are responsible for monitoring, correcting, processing unsubscribe requests within 10 days, and updating the email addresses to which messages are sent through Customer’s Openfax account.
4.6 Emails that Customer sends through the Service may generate abuse complaints from recipients. As a matter of privacy, Openfax cannot share with Customer the email addresses of those who complain about Customer’s email campaign. Customer is responsible for ensuring that Customer’s email campaigns do not generate a number of abuse complaints in excess of industry norms. Openfax, in its sole discretion, shall determine whether Customer’s level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
4.7 Customer is responsible for complying at all times with the Openfax Prohibited Content and Commerce Policy.
4.8 Openfax, at its own discretion, may immediately disable Customer’s access without refund to the Services if Openfax believes in its sole discretion that Customer has violated any of the email and permission practices listed above, or the Openfax Prohibited Content and Commerce Policy.
5. Restrictions and Responsibilities
5.1 Openfax will not use Customer’s customer list or any other customer information for any other purposes than those intended with the Service. Customer’s customer information will not be shared with any other parties unless required by law.
5.2 This is an Agreement for Services, and Customer are not granted a license to any software by this Agreement. Customer 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 Customer are an authorized Openfax Reseller, Customer may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Services or the Software, or any content, including but not limited to newsletters, distributed to Customer by Openfax in connection with the Services. Violation of these restrictions may result in the termination of this Agreement.
5.3 The Services shall be used for Customer’s internal business (which includes civic or charitable) purposes only, and Customer shall not use the Services or any Software for timesharing or Service-bureau purposes or otherwise for the benefit of a third party. If Customer 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 Customer’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
5.4 Customer acknowledge and agree that the Services and the Openfax company names and logos and all related product and Service names, design marks and slogans, are the property of Openfax or its affiliates or suppliers (collectively, the “Marks”). Customer is not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Openfax. Customer’s 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 Customer represent, covenant, and warrant that Customer 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). Customer agrees Customer will not access or otherwise use third-party mailing lists in connection with preparing or distributing unsolicited email to any third party. Customer hereby agree to indemnify and hold harmless Openfax 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 Customer’s use of the Services. In addition, Customer acknowledge and agree that Openfax has the right to seek damages when Customer 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 Openfax has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Openfax 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 Customer’s local area is prohibited. Furthermore, the Services must not be used for purposes outlined in Openfax’ Prohibited Content and Commerce Statement, the terms of which are incorporated into this Agreement by reference.
5.7 For every email message sent in connection with the Services, Customer acknowledges and agrees that the Services may automatically add an identifying footer stating “Powered by Openfax” or a similar message. Customer agrees to cooperate with and provide reasonable assistance to Openfax in promoting and advertising the Services.
5.8 In using the varied features of the Services, Customer may provide information (such as name, contact information, or other registration information) to Openfax. Openfax may use this information and any technical information about Customer’s use of the Services to tailor its presentations to Customer, facilitate Customer’s movement through the Service, or communicate separately with Customer. If Customer licensed the Services as a result of solicitation by a Marketing Partner of Openfax, Openfax may share Customer’s information with the Marketing Partner and the Marketing Partner may share information with Openfax. Openfax will not provide information to companies Customer have not authorized for that purpose unless required by law or if Customer are terminated from Openfax due to unsolicited commercial email being sent from Customer’s Openfax account.
5.9 If Customer receives special discounts through a Marketing Partner, those discounts may not be available if Customer ceases to continue to be a customer of the Marketing Partner, in which case Openfax’ standard rates will apply. The Marketing Partner may notify Openfax of any change in Customer’s status.
6.1 Customer may terminate this Agreement at any time by calling Openfax Customer Support. There are no refunds for any fees paid.
6.2 Openfax may terminate this Agreement or the Services, disable Customer’s account or put Customer’s account on inactive status, in each case at any time with or without cause, and with or without notice. Openfax shall have no liability to Customer or any third party because of such termination or action.
6.3 Openfax will delete any of Customer’s archived data within 30 days after the date of termination. After termination, Customer are required to process all unsubscribe requests within 30 days of Customer’s last email campaign.
6.4 If Customer’s account is classified (at Openfax’ sole discretion) as inactive for over 120 days, Openfax has the right to permanently remove Customer’s subscriber data. Openfax will attempt to contact Customer via email prior to taking any permanent removal actions.
6.5 Openfax will provide upon request the list of unsubscribe requests from Customer’s 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 CUSTOMER UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. OPENFAX 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 OPENFAX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Customer’s sole and exclusive remedy for any failure or nonperformance of the Services shall be for Openfax 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 OPENFAX 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 “OPENFAX”) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF OPENFAX 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, OPENFAX IS FOUND LIABLE TO CUSTOMER 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 OPENFAX TO CUSTOMER WILL BE LIMITED TO THE AMOUNT CUSTOMER 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 CUSTOMER.
9. Export of Services or Technical Data
Customer may not remove or export from the United States or allow the export or re-export of the Services, 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.
10.1 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.
10.2 Openfax and Customer 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.
10.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and Customer does not have any authority of any kind to bind Openfax 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 The Agreement shall be governed by the laws of the Commonwealth of Illinois, 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 Chicago, Illinois.
10.6 Openfax is a trade name of Opfx, Inc a Delaware Corporation. Openfax’ Policy Openfax has a no tolerance spam policy. Openfax’ customer support actively monitors large import lists and emails going to a large number of subscribers. Any customer found to be using Openfax for spam will be immediately cut-off from use of the product. If Customer know of or suspect any violators, please notify us immediately at firstname.lastname@example.org. Every email contains a mandatory unsubscribe link – those individuals who try to remove this link will be warned that they are doing so. If the link is removed or de-activated in any way, Openfax will terminate the customer’s account.
What is Spam?
Spam is unsolicited email also known as UCE (Unsolicited Commercial Email). By sending email to only to those who have requested to receive it, Customer is following accepted permission-based email guidelines.
What constitutes a Preexisting business relationship?
The recipient of Customer’s email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with Customer.
What constitutes consent?
The recipient of Customer’s email has been clearly and fully notified of the collection and use of his email address and has consented prior to such collection and use. This is often called informed consent.
Isn’t there a law against sending Spam?
The federal anti-spam law went into effect on January 1st, 2004 and preempts all state laws. While this new law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a fine and/or imprisonment for up to 5 years.
How Openfax protects Customer from sending spam
Openfax is a permission-based email-marketing tool that follows the strictest permission-based philosophies:
Verification – Openfax can automatically sends all of Customer’s new subscribers an email confirming their interest in receiving emails from Customer. Additionally, if Customer’s subscriber changes his or her interests or unsubscribes, Openfax automatically sends an email confirmation.
Unsubscribe – Every email generated from Openfax contains an unsubscribe link which allows Customer’s subscribers to opt-out of future email campaigns and automatically updates Customer’s subscriber lists to avoid the chance of sending unwanted emails to visitors who have unsubscribed.
Identification – Customer’s email header information is correct because it is pre-set for Customer by Openfax. Customer’s email campaign’s “From” address is verified and already accurately identifies Customer as the sender.
Contact Information – all of Customer’s emails are pre-filled with Customer’s contact information including Customer’s physical address.
I, the undersigned, if an individual Customer, or as a duly authorized agent of Customer, in the attached Customer Serving Agreement, hereby authorize Openfax or its assigns to have or acquire any/all financial/credit information necessary to receive credit approval. I have read and agreed to the Terms and Conditions in the attached Openfax Customer Service Agreement. Openfax and the Customer agree that a fax transmission of this agreement is mutually acceptable and legally binding. The Providing of the list of phone and fax numbers or email addresses and fax documents or email content is the Customer’s sole responsibility. Customer affirms that Openfax has not had any involvement in the acquisition or development of any lists, documents or email content and has not made any independent assessment, nor any express or implied warranty, as to the lists accuracy and compliance.
Customer acknowledges that Openfax relies on the statements in this Declaration for such purpose. Customer hereby releases and forever discharges Openfax from all damages of any kind arising out of its access to, reliance on, or use of information contained in the List.