Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING ANY OF THE IMN SERVICE DESCRIBED HEREIN, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THE IMN SERVICE.
IMakeNews, Inc. ("IMN") has elected to make
available certain IMN proprietary content publication services to you that
enable you to have certain topical e-newsletters, sponsored by you, distributed
to your customers and other recipients designated by you (the “IMN Service”).
The IMN Service may not be used for the sending of unsolicited email (sometimes
called "spam") and all electronic communications which you direct to
be sent by the IMN Service must comply with IMN’s
The following are the terms and conditions for access to and use of the IMN Service. By logging on and using the IMN Service, you, the subscriber to the IMN Service, are acknowledging that you have accepted these terms and conditions (also referred to as this “Agreement”).
You shall be obligated to provide IMN with a valid credit card and you will be subject to subscription fees charged by IMN to your credit card in accordance with the fee schedule emailed to you, , for your use of the IMN Service. If IMN is for any reason unable to effect payment via your credit card, IMN will attempt to notify you via email and your access to the IMN Service may be disabled until payment is received. Amounts paid for the IMN Service are not refundable. Until your subscription to the IMN Service is terminated, you acknowledge and understand that IMN will continue to charge you for the IMN Service regardless of whether the IMN Service are used or not. All fees are subject to change in accordance with Section 11 below.
2. Access to Internet; Equipment
In order to use the IMN Service, you are responsible at your own expense to access the Internet, either directly or through devices that access web-based content. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device. You shall not attempt to access any other of IMN's systems, programs or data that are not made available for public use.
3. License Grant; Restrictions
Subject to these terms and conditions and your payment of all applicable fees, IMN hereby grants to you (i) a non-exclusive, non-transferable, revocable license to allow up to one User to access the website for each IMN Service to which you have subscribed, solely in order to configure such IMN Service for your internal business purposes and (ii) a non-exclusive, non-transferable, revocable license to distribute any IMN Content (as defined below in Section 5) made available to you for inclusion in e-newsletters that form part of the IMN Service to your customers and other designated recipients, pursuant to the automatic e-newsletter distribution system that forms part of the IMN Service. A “User” shall mean you unless you are a corporate or similar entity, in which case a User shall mean any of your employees, consultants or independent contractors. This license is restricted to use by you and your Users and does not include the right to use any IMN Service on behalf of any third party or the right to permit any non-User to access or use any IMN Service. All rights not expressly granted to you are reserved by IMN and its licensors. There are no implied rights.
This is an Agreement for services and access to the IMN Service only, and you are not granted a license to any software by this Agreement. Unauthorized use, resale or commercial exploitation of any of the IMN Service in any way is expressly prohibited. Without IMN’s express prior written consent in each instance, you shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any of the IMN Service or any software or data related to the IMN Service or used to make the IMN Service available to you. Except as expressly permitted in this Agreement, you shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign any of the IMN Service, any content forming part of any IMN Service (including any IMN Content), or your rights to use the IMN Service to any third-party. You shall take all measures necessary to ensure compliance by all of your Users authorized to access the IMN Service with these terms and conditions and shall be liable for any breach by your Users of such terms and conditions. You are responsible for maintaining the security of your account, passwords and files.
4. Compliance with Law; Further Covenants
You represent, warrant and agree that you shall operate your business and use the IMN Service solely in accordance with all applicable laws and regulations and these terms and conditions (including but not limited to the federal CAN-SPAM Act of 2003 and all policies and laws related to spamming and privacy). IMN may, in its sole discretion, block any email messages, remove any of your content or prohibit any use of the IMN Service that IMN believes may be in violation of the foregoing.
5. Ownership; IMN Content.
You acknowledge and agree that all right, title and interest in and to the IMN Service and any IMN Content and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain IMN’s or its licensors’, and this Agreement in no way conveys any right or interest in the IMN Service or the IMN Content other than a limited license to use them in accordance herewith. The IMN name, the IMN logo, and the product names associated with the IMN Service, including, but not limited to “IMN”, are trademarks of IMN or third parties, and no right or license is granted to use them. You shall not remove any IMN trademark or logo from any IMN Service. For purposes of this Agreement, “IMN Content” shall mean any articles, images and other content made available to you by IMN as part of the IMN Service for use in e-newsletters sent via the IMN Service. IMN reserves the right, in its sole and absolute discretion, to include IMN and third party advertising and promotional items and links in the e-newsletters. You will not have the right to modify any of the IMN Content.
6. Data Collection.
As set forth in Section 5 above, IMN will determine and select applicable content for the IMN Service. Your name, contact information any other content that the IMN Service allows you to upload into the e-newsletter (collectively, the “Customer Content”) will not be used by IMN except as set forth herein and except as necessary to provide the IMN Service to you and you hereby grant to IMN a limited, non-exclusive, non-transferable, royalty-free right to copy, use, store, display and distribute the Customer Content in connection with providing the IMN Service to you. The accuracy of Customer Content shall be your sole responsibility. IMN does not guarantee the accuracy, integrity or quality of such Customer Content. You shall not use the IMN Service to: (a) upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or that exploits children; (b) upload or otherwise transmit any Customer Content that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) upload or otherwise transmit any Customer Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person; or (d) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. IMN may immediately disable or terminate your access to the IMN Service without refund if IMN determines, in its sole discretion, that you have violated any of the policies listed above or elsewhere in this Agreement.
8. Automatic Publication.
You acknowledge and agree that all e-newsletter publications to be sent on your behalf via the IMN Service will be scheduled by IMN for automatic distribution (the date of such distribution is hereinafter referred to as the “Distribution Date”). You shall have the right to add or update your Customer Content for display in the e-newsletter until one business day prior to the Distribution Date (unless otherwise noted in the IMN Service or its documentation). No further modifications to the e-newsletter may be made by you thereafter.
9. Email Policy.
In connection with your use of the Service, you shall at all times comply with the IMN Email Policy, which may be modified by IMN from time to time, in its sole discretion.
IMN may terminate this Agreement and your use of the IMN Service or disable your account, in each case at any time with or without cause, and with or without notice. IMN shall have no liability to you as a result of such termination or disablement. You may terminate this Agreement or your use of the IMN Service at any time by providing written notice of termination. Such notice of termination shall be sent via email to email@example.com, and must contain your username and the IMN Service you are terminating. Such termination shall be effective at the end of the term previously agreed to by you when you signed up for the IMN Service. There are no refunds for any fees paid. 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. IMN reserves the right in its sole and absolute discretion to change, suspend or discontinue — temporarily or permanently — some or all of the IMN Service, at any time without notice. IMN will not be liable to you for any such modification, suspension or discontinuance of the IMN Service.
11. Amendments to Prices and Agreement.
IMN reserves the right to modify the terms and conditions set forth in this Agreement, the prices for any IMN Service, at any time in its discretion and to offer additional service offerings with or without charge. IMN will notify you by email if it has made any changes in the prices or this Agreement, but, whether or not such notification is provided, you are responsible for reviewing the then current IMN publication prices, terms and conditions which shall be set forth on the website for the IMN Service. If you continue to use the IMN Service after IMN has made any such changes without exercising your termination rights, then you will be deemed to have accepted and agreed to such changes.
12. Warranties; Disclaimer
You represent and warrant that: (i) Customer Content will not infringe on the copyrights, trademarks, service marks, patents, trade secret, privacy, publicity, or other intellectual property or personal rights held by any third party; (ii) you have all power and authority to enter into this Agreement and have duly and validly authorized this Agreement, which shall be enforceable against you in accordance with its terms, and; (iii) you agree to comply with all federal and state laws, regulations and rules, including without limitation regulations pertaining to online commerce, and consumer privacy rules promulgated the Federal Trade Commission.
THE IMN SERVICE, INCLUDING, WITHOUT LIMITATION, ALL IMN CONTENT, ARE PROVIDED TO YOU “AS IS”. YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY IMN. IMN DOES NOT WARRANT THAT YOUR USE OF ANY OF THE IMN SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. IMN SHALL NOT BE LIABLE FOR ANY FAILURE OF THE IMN SERVICE ARISING DUE TO FACTORS OUTSIDE IMN’S REASONABLE CONTROL.
Your sole and exclusive remedy for any failure or nonperformance of the IMN Service or any error or omission in the IMN Content and IMN’s sole remedy shall be for IMN to use commercially reasonable efforts to repair the error or defect in the applicable IMN Service or to correct the IMN Content.
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 IMN OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF IMN TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE IMN SERVICE IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT IMN HAS SET ITS PRICING IN RELIANCE ON THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
You shall defend, indemnify, and hold IMN harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against IMN and its employees and affiliates arising from or connected with (i) any claim that Customer Content infringes or misappropriates any third party copyright, patent, trademark, service mark, trade secret, privacy, publicity or other intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by you.
You shall use the IMN Service in compliance with all laws
and regulations, including without limitation all export control laws and
regulations of the
(a) This Agreement shall be construed in accordance with and governed for all purposes by the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of law; (b) this Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral; (c) the parties hereto agree that only the Massachusetts courts, either federal or state, shall have exclusive jurisdiction over this Agreement and any controversies arising out of this Agreement; (d) in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement but this Agreement shall be construed as if such invalid, illegal or other unenforceable provision had never been contained herein; (e) you shall not assign your rights or obligations hereunder without IMN's advance written consent; (f) subject to the foregoing subsection (e), this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns; and (g) no waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion.