This agreement sets out the legally binding terms of your use of the services provided by Benchmark Internet Group, LLC (hereinafter referred to as "Benchmark" or "Services") to you (hereinafter referred to as "End User," "You" or "Your"), and may be modified by Benchmark from time to time, such modifications to be effective upon posting of the modified agreement.
By accessing, using and/or registering for the services provided by Benchmark, you agree that you have read and understand this End User Terms of Service and all of its contents (hereinafter referred to as this "Agreement"), intend this Agreement to be the legal equivalent of a signed, written contract and equally binding, and that you will be subject to all of the terms and conditions set forth herein. You agree to review the Agreement periodically to be aware of any such modifications, additions, deletions or other changes, and your continued access, registration and/or use of the Services shall be deemed your acceptance of the modified agreement.
OVERALL AND GENERAL TERMS
Future performance by Benchmark under this Agreement constitutes legal consideration for such revisions. These revisions take effect when Benchmark notifies you of them, either through e-mail or website announcement, and you should stop using Benchmark's Products and cancel your account if you do not agree to these revisions. When you check the box and click the "Agree" button, when you log into your Benchmark account, or when you access any Benchmark product, including this website and sub-sites, you accept this Agreement for yourself and any organization that you represent (collectively, "You"). Do not attempt to amend this Agreement through further communication (including but not limited to invoices, purchase orders, etc.), as these attempts will specifically be null and void.
DESCRIPTION OF SERVICES
Benchmark Email: The monthly renewing service provided by Benchmark Email enables the End User to send electronic messages containing rich media content, including, but not limited to, images, videos, music, sound clips and other audiovisual and/or interactive features. Any new feature, enhancement, addition, change or upgrade to the current Service shall be subject to the terms and conditions set forth in the Agreement herein. Benchmark Events: The service provided by Benchmark Events enables the End User to create an Event page and related social media and email marketing promotional materials for the purposes of managing, tracking and collecting Event registration fees. You acknowledge that Benchmark reserves the right to modify or discontinue any of its services in whole or in part with or without notice.
COMMUNICATION WITH USERS
Benchmark is permitted to inform you of changes to this website and/or sub-sites, its Products, this Agreement or its Fee Schedule. It is likewise permitted to inform you of breaches of this Agreement and any actions taken regarding your privilege to access the Products. However, it shall not be obligated to send notice if the Agreement does not require it.
Benchmark shall also have the authority to monitor and/or record its phone conversations and text chats with you for quality control, for training purposes, and for its own legal protection. You warrant that anyone who has authorization to use your account likewise consents to such monitoring and/or recording. You agree that none of this obligates Benchmark to record any communication from you, and you acknowledge that some communications will not be recorded or be available to be retrieved. Benchmark may contact you to discuss its Products; you may still opt out of telephone contact by emailing a request to firstname.lastname@example.org. However, even after opting out, you agree that Benchmark may still contact you by phone at your specific request.
Benchmark solely and exclusively owns all intellectual property and other rights, title and interest in and to the Benchmark services and all content and materials provided to you through the Services, including, but not limited to, text, software, music, sound, video, photographs, graphics and animation (hereinafter referred to as the "Content"). All such content provided by Benchmark and its licensors through the Services is the sole and exclusive property of Benchmark, and any unauthorized use of the content may violate United States federal copyright laws, patent laws, moral rights laws, trade secret laws, confidential information laws, trademark laws, unfair competition laws or other similar rights.
Benchmark grants you a limited, nontransferable, nonexclusive, revocable license to access and use the Services and send, compose, read, print, save and forward messages containing the Content as described and limited in this Agreement. You hereby agree to access and use the Services for their intended purposes, subject to your compliance with this Agreement, and are hereby prohibited from utilizing the Services for any other purpose or to alter the Content and/or Services in any way, including, but not limited to, removing or deleting any proprietary rights notices. This license does not include the right to collect or use information contained on the Site or through the Services for purposes prohibited by Benchmark, to compete with Benchmark, create derivative works based on any and all Content obtained through the Services, or download or copy any Content obtained through the Services (other than page caching). In addition, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, transfer any content, information, documents, graphics or other materials or Content obtained through your use of the Services, in whole or in part, for commercial or non-commercial purposes. License to use the Services is limited to personal use by the End User; therefore, resale or commercial use of the Services or any other means to seek financial gain from providing the Services to any third party, without the express prior written consent of Benchmark, is strictly prohibited. By using the Services, you acknowledge and agree that portions of the Content is provided to you by third-party licensors, and you hereby agree to adhere to and comply with any such third-party's license(s) and to refrain from violating any such licensor's intellectual property rights. If you use the services in a manner that exceeds the scope of this license or breaches this Agreement, Benchmark may revoke the license granted to you.
END USER OBLIGATIONS
By accessing, using and/or registering for the Services, you agree to: a) provide true, accurate, complete and current user information as requested by Benchmark at any time; b) promptly and regularly update your user information to maintain its accuracy and completeness; c) provide for your own access to the Internet and pay any fees or costs relative to such access that is required to access the Services; d) provide all necessary equipment and/or materials necessary for you to make such connection to the Internet in order to access, use and/or register for the Services.
By providing any user information that is untrue, inaccurate, incomplete and/or not current, Benchmark reserves the right to suspend or terminate your account and refuse any and all current or future use of the Services, in whole or in part, by you. On occasion, we may ask you to sign an affidavit verifying the fact that your list is truly permission based.
When requested, you agree to provide current, complete and truthful information about yourself and/or your organization. You agree to update any such information when it changes.
END USER PRIVACY
Benchmark will not monitor, edit, review or disclose the contents of any Messages composed and/or sent by an End User to a third-party recipient without End User's prior permission, unless: a) as required by law; b) in compliance with legal authorities or during any legal proceeding; c) to enforce this Agreement; d) to respond to any good faith belief or claim that such Message, or any of its contents, violates the rights or interests of any third party or violates this Agreement; and/or e) to protect the rights and/or property of Benchmark, its licensors or any other third party.
Whenever Benchmark uses the word Unlimited with regard to image storage on our site, the fair usage of that is not to exceed 1 gigabyte of storage. Unlimited in this context of Image Storage shall not exceed 1 gigabyte of storage.
AUTOMATED DATA COLLECTION
You allow us to collect data from your site using automation, and this may include bots, scrapers, spiders, and robots, and that the data gathered is used for our own internal purposes. We won't gather the data or use the data we've collected if you have set up a /robots.txt file to prevent and disallow collection. At Benchmark, we may obtain information that you give us in connection with how you use our site, our products (this includes email addresses, phone numbers addresses, and other info from your subscribers) and content (this includes information from storefronts).
We will never rent or sell the information from your customers without permission from you, and we will never use information from customers for any purpose or goal other than providing our services and products. If we, at any time, amend or change the policy in the previous sentence, we will give advanced notice of such changes, revisions or amendments. In return for this, you deliver to us a non-exclusive, royalty-free, worldwide, non-revocable license, with the right to publish, distribute, display, sublicense, and use information from customers only as needed by us to operate and offer our service and related products, which includes any offerings from third parties, Apple included.
END USER CONDUCT
Benchmark Internet Group, LLC completely forbids Websites, services or products by any people who: Sell, provide, offer or offer to sell the following types of content, products or services within the realm of: sexual goods, pornography, pornographic services or anything related to those types of products, services or goods. This includes (but is not limited to): videos, software, magazines, escort services, illegal goods, drugs, accessories or contraband related to drugs, pirated software, or instructions or education on how to create grenades, bombs, illegal arms or other weapons.
Markets, displays or offers any material that exploits children or minors (anyone 18 years old and under).Offers, promotes, sells or provides either services or content related to commercial email spam, which includes but is not limited to: illegal, Web-based or even direct pharmaceutical sales. This also includes sex or sex-related products, work at home businesses, credit repair, debt relief services, financial management services, trade or stock tips, refinancing and mortgage-related services, party and/or nightclub promotion, gambling, bet-making or odds-based services, which may include but is not limited to casinos or casino games, racetrack or dog-racing bets, poker, online betting businesses, and both pro and college sporting event betting services.
Provides, markets or offers any offensive material that expresses prejudice, racism, bigotry, hatred, profanity, or any material that uses lewd, excessively violent, lascivious, dirty, or other questionable and objectionable content.
Provides, posts, markets or offers personal information about children or minors (anyone 18 and under) without the permission of their parents or legal guardians.
Promotes, posts or offers any type of product or service that is illegal in the geographic area of where the content is created, sent from or received.
Distributes or unleashes nefarious computer or technology related items that include but are not limited to viruses, harmful code, trojans, key-logging software or other types of spyware. Distributes, promotes, posts or offers services or content that solicit participation in pyramid or ponzi schemes, multi-level or channel (MLM) businesses or services that include but are not limited to work at home jobs, "get rich quick" schemes, services or content that offers ways to "build wealth" or become "financially independent".
Distributes content that could be considered threatening, defamatory, libelous or harassing. Promotes or solicits material that encourages violence or subterfuge against organizations, governments, groups, individuals or public figures, or sends out or promotes anything that gives instruction or assistance in carrying out aforementioned violence or behavior. Distributes or uses any content not owned by the sender including photos, artwork or content without the express written consent of the owner, or distributes any material that identifies or displays images of people without their express written consent.
Benchmark reserves the right to show clients' logos and names on our site as representing that they use our service for advertising purposes only. Any client can be removed from said list by simply emailing us or sending written confirmation of the same.
By accessing, using and/or registering for the Services, you shall not use the Services, in whole or in part, in any way, for the purpose of composing and/or sending chain letters, junk electronic mail, "spam," or any purpose that involves the utilization of distribution lists to any third party business or individual that has not given express specific permission to be included in such a distribution list. Any electronic mail advertisement that is composed and addressed to a third-party recipient with whom the sender does not have an existing business, commercial or personal relationship and which is not sent at the express request or consent of the recipient to receive such a Message from you is strictly prohibited (hereinafter referred to as "Spamming").
The definition of "Spamming" is determined solely by Benchmark's internal evaluation system, which involves numerous data points, including such things as your complaint rate, adherence to the CAN-SPAM Act, bounce rate, complaints from ISPs and feedback from blacklisting services and other criteria we may deem appropriate.
Benchmark reserves the right to immediately terminate any End User's license to access and/or use the Services if such End User uses the Services, in whole or in part, for Spamming purposes, and Benchmark reserves the right to seek appropriate legal action as necessary for any such violation. If you reasonably believe that any other user may be using the Services for Spamming purposes, you hereby agree that you will promptly notify Benchmark of any such violation.
You warrant that you will use contact lists with Benchmark Products only if all recipients have agreed to receive your correspondences. You agree that you will not accept consent through participation in surveys, registrations, or through contact on social media sites, unless you specifically request confirmation to send such correspondences and the recipient has specifically consented.
LIMITATIONS ON MASS DISTRIBUTION
You agree that you will not use Benchmark Products to distribution lists, newsgroups, publicly available media addresses or purchased email addresses. Benchmark may take any permitted legal measure, without notice, to prevent unsolicited bulk emails, messages or campaigns from using Benchmark's network.
You warrant that, in using Benchmark Products, you will represent yourself and/or your organization truthfully and accurately, and will not attempt to pose as any other person or organization, real or fictional. You warrant that you will be the sole designated "Sender" (as defined in the U.S. 2003 CAN-SPAM Act and related rules and regulations; or, for Canadian recipients, of Canada's "Anti-Spam Legislation", S.C. 2010, c. 23) of any message you cause or permit to be sent using Benchmark Products.
You agree that any email you send using a Benchmark Product will truthfully and accurately represent you and/or your organization, product or service in the "Sender/From" and "Subject" section of the email heading. You agree that any such email shall include your proper physical address or valid P.O. Box that meets the United States Postal Service's registration requirements.
You agree to process unsubscribe requests within 10 days of your receipt, and will update email addresses sent through your Benchmark account. You warrant that for a recipient to unsubscribe, you will not attempt to charge a fee, require any additional personal identifying information other than an email address, nor add any additional steps beyond replying to an email or visiting a single web page. You agree that your responsibility to process and comply with unsubscribe requests survives the cancellation or termination of this Agreement and/or your Benchmark account.
You warrant that you will not use Benchmark Products to send emails that primarily promote commercial advertisements, products or services, as defined by the CAN-SPAM Act or Canada's Anti-Spam Legislation (as appropriate), to anyone who has opted out of or protested receiving such messages.
For each campaign or message you distribute or send using our service, you agree that we might link to our site or add a button that says "Benchmark Email" , "Trusted Email by Benchmark Email", or other branding, as long as the button or link does not interfere, obscure or distract from the campaign or message.
EMAIL INVITE RESTRICTIONS
Emails that are sent from Event Marketing accounts must relate directly to Events that are currently active in the account. Using an Event Marketing account to send general marketing email (i.e., email that does not promote a currently active event) will be grounds for immediate account termination.
END USER CONTENT AND SECURITY
Maintaining your password and the security of your account is your responsibility. We will accept any instructions by any individual who enters your username and password, as long as this person is either the account holder or someone authorized to use the account. We may use email, a phone call or a third-party service to verify this access. Whether you sign up as a user as an individual or organization, we are not familiar with your organizational structure, nor your personal relationships (if you use our service as a person, not an entity or organization). You are liable for any activity that happens under your password and username or your authorized users. If you or your authorized users misuse your account, assets or contact lists, we may terminate the account without warning. As part of this agreement you agree to notify us of any activity on your account that is unauthorized or violates our TOU and security practices.
You may authorize other users to make use of your Benchmark account, at our discretion. You agree that you are accountable for any such user and for their compliance under this Agreement.
Benchmark will not accept, review or consider any suggestions, ideas, notes, drawings, diagrams, concepts or other information (hereinafter referred to as "Information") from any End User or other third party, other than those it has specifically and expressly solicited, and Benchmark therefore requests that any End User or other third party refrain from sending any such Information to Benchmark. If any End User or other third party elects to send any suggestion, idea, note, drawing, diagram, concept or other information, any such Information shall be deemed the property of Benchmark. End User hereby assigns and transfers all Intellectual Property Rights in and to the Information to Benchmark, and End User further agrees to reasonably and promptly effectuate the assignment described herein by executing all applicable instruments and documents now or hereafter requested by Benchmark which are necessary to effectuate the assignment, as well as perform any other reasonable act deemed necessary by Benchmark to fully transfer ownership of the Information to Benchmark to the fullest extent possible.
During any such transfer of ownership of Information from End User to Benchmark, Benchmark is not responsible or liable to provide compensation to End User in any way, form or manner for the transfer or assignment of Intellectual Property Rights in and to the Information, nor is Benchmark subject to any confidentiality policies on behalf of the End User regarding the Information and, therefore, shall not be liable or owe any compensation to End User for any use and/or disclosure of the Information.
You, as End User, have the sole and exclusive responsibility for any content, data, text, software, music clips, sound, video, photographs, graphics, messages, files or other material that is transmitted, posted or otherwise distributed by you through the Services (hereinafter referred to as "End User Content"), including, but not limited to, the contents of your electronic mail communications, the contents of your Event and related social media pages, photographs posted by you on the Benchmark Site or through the Services. As such, you assume sole liability for all End User Materials posted by you, whether publicly or privately posted and/or transmitted. Benchmark is not responsible and holds no liability relative to monitoring the End User Content provided through the Services, and does not warrant, guarantee or represent, in any way, the accuracy, quality and/or integrity of the End User Materials. By utilizing the Services, you acknowledge that you may be exposed to content or other materials submitted by third parties or other users that may be offensive, indecent or otherwise objectionable, and that Benchmark is held harmless from any liability resulting or arising out of same. Likewise, Benchmark shall not be held liable for any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content transmitted through the Services.
COPYRIGHT: TAKE DOWN AND NOTICE PROCEDURES
If you think materials on our site or products infringes on your intellectual property or copyright, you may ask us to remove those materials or access to those materials from the products or site by contracting our copyright agent (see below) and giving us the following info: Identification of any material you think infringes on your copyright or intellectual property, as well as its location.
Identification of the infringing work. Info that is required to be included in a United Kingdom Digital Economy Act of 2010. We may request this information as necessary)Your address, email address, name and telephone number.
A statement by you that shows that you have a good faith belief that the particular material are not authorized by the copyright owner, the person's agent, or the law. An accurate statement under the penalty of perjury that you are authorized to act on behalf of the copyright holder.
A signature or the digital or electronic equivalent from the authorized representative of the copyright holder or the copyright holder.
Our copyright agent and info is:
Benchmark Internet Group, Inc.
10621 Calle Lee, Building 141
Los Alamitos, CA 90720
Phone: 800. 430. 4095 extension 4
For any email submissions or contact, please use the words "copyright infringement request" or "DCMA removal request". To protect the rights of copyright holders, we reserve the right to terminate the accounts of infringers immediately and without notice.
USE OF SERVICE AND STORAGE LIMITATIONS
Benchmark may, at its sole discretion, establish and enforce general practices, policies and limitations with regard to your use of the Services, including, but not limited to: a) the maximum number of day(s) that electronic mail messages or other uploaded content will be stored by the Services; b) the maximum number of electronic mail messages that may be sent or received by your account through the Services; c) the maximum size of any electronic mail messages that may be sent or received by your account through the Services; d) the maximum disk and/or server space that will be allotted to you on Benchmark's servers for your use of the Services; and/or e) the maximum number of instances and duration which you may access the Services in a given period of time.
The amount of electronic mail storage on Benchmark's server allotted to you for your use of the Services is limited; however, additional storage space for electronic mail messages may be available to you upon payment of additional fees. Benchmark shall not be held liable for the deletion of an electronic mail message or the failure to compose or send an electronic mail message through use of the Services, nor is Benchmark liable for electronic mail messages that are not processed or sent due to space limitations or outbound message limitations. Benchmark reserves the right to log off the account of any end user which has been inactive for an extended period of time, at the sole discretion of Benchmark. Benchmark further reserves the right to modify, add to or otherwise change these practices, policies and limitations at any time, with or without notice to you, at its sole discretion.
As part of this TOU, you agree that the company my set standards, limits and general practices in regards to the service, product or site, including and without limitation on the maximum number of campaigns or messages sent by you and the maximum size of campaigns or messages that are sent or transmitted through the service, site or product. We at Benchmark can revise, change, modify, suspend or discontinue any of our products or services, in part or whole, either permanently or temporarily without any notice. By agreeing to this TOU, you acknowledge that we are not required to update or support our products. If we decide to discontinue or halt the site or service completely, we will provide advanced notice and allow you to cancel your account.
FEES, PAYMENTS AND TAXATION
When a free trial has expired or surpassed its limitations, you will be subject to any applicable Fee Schedule. The Fee Schedule may change at our sole discretion at any time; if you disagree with any change, you agree to cancel your account. Benchmark agrees that it will attempt to notify you in good faith before any major Fee Schedule modification, but it remains your responsibility to periodically review your fees and/or discounts. Fees will apply every month even if you do not use a Product in that time period, and you agree that Benchmark's measurements of your fees are definitive in determining the amount you owe under this Agreement.
Special discounts through our partners may not continue to apply if you do not remain a customer of that partner. You agree that Benchmark may rely on its partners for information regarding your Benchmark account.
You must submit any disputes of charges under this Agreement within 60 days of the charge. You agree that failing to submit a dispute during that time period shall render all charges final and irrefutable.
Payments will be made in advance for Products via a valid credit card accepted by Benchmark. Benchmark also accepts checks that prepay for Products for six months or more. All payments must be made in U.S. currency. If you are on a monthly payment schedule, you authorize Benchmark to process your charges through any credit card you have already provided. Such charges may occur after any free trial period expires, up until the time that your Benchmark account is cancelled, either by you or by Benchmark. If we are unable to process a scheduled automatic payment, we will attempt to notify you and your account may be temporarily suspended.
Benchmark may need to collect sales tax from you if you are in certain localities, including (but not limited to) jurisdictions that levy taxes on software that is delivered as a service and where Benchmark has a legal physical presence. The address that you provide to Benchmark will determine any jurisdictional taxes.
BENCHMARK EVENTS REFUND POLICY
Benchmark does not provide refund services for tickets purchased through Event Marketing accounts. Clients who wish to refund tickets purchased from their Event Marketing accounts must assume all responsibility for returning funds to the ticket purchaser. Refund functionality in the accounts is for accounting purposes only. The refund controls are noted in the account as such.
PARTNER PAYMENT POLICY
A Partner will be paid on a monthly basis, given the Partner's earnings total $20 or more. If the commissions are less than $20 in an individual month, the earnings will rollover to the following month's payment.
Payments are made via ACH, Paypal or check (US banks only). International wires are subject to a $40 wire fee.
Partners must submit all necessary forms to receive payment for their commissions. If this has not been completed after a one year period, commissions will be forfeited. Other circumstances that may result in a forfeiture of payment include account suspension or termination.
Commissions will expire after a duration of 2.5 years or when a referral terminates paid service with Benchmark Email, whichever comes first.
As End User of the Services, if you disagree and/or are dissatisfied with the Services, in whole or in part, or with any provision of this Agreement, in whole or in part, or any subsequent modifications thereto, it is your sole and exclusive obligation and remedy to terminate your End User account, for any reason and at any time.
To terminate your account, you must immediately discontinue your use of the Services, notify Benchmark of your intention to terminate your End User account, and destroy all content and materials obtained through your use of the Services, all related documentation and any originals or copies of same. Upon execution of the termination process, you must cease all use of the Services immediately, and any license granted to you by Benchmark to use the Services will be revoked. Termination of this Agreement and your End User account to use the Services shall not have any effect on your obligations to Benchmark under any other agreement or policy relating to the Benchmark Services. Upon termination of your End User account, Benchmark shall not be liable, in any way, to you or any third party for termination of your use of the Services, and Benchmark shall not be obligated to forward any unread, unsent or unprocessed electronic mail messages to you or any third party. Benchmark reserves the right to immediately terminate your End User account and your access to the Services for any violation of the terms and conditions set forth in this Agreement, with or without prior notice to you, for any reason in Benchmark's sole and exclusive discretion.
Upon termination of your End User account and your access to the Services, you must destroy all content and materials obtained through your use of the Services, all related documentation and any originals or copies of same. Upon termination of your End User account by Benchmark, Benchmark reserves the right to immediately delete all electronic mail messages in your End User account and prohibit any and all further access to those electronic mail messages and/or your use of the Services. All Terminations by Benchmark for spamming abuse are absolutely non-refundable without exception.
Since we are a month-to-month service, you may cancel your account at any time. Your subscription fee is prepaid so we simply require that you cancel prior to your monthly renewal date or you will be charged your next month's subscription fee. We do not prorate or refund our services.To cancel your account, log in to your Benchmark Email or Benchmark Events account, go to the My Account tab, click on Plan Information, go to the Cancel My Account link and complete the process. You will receive a cancellation confirmation message on screen and by email, which includes your Cancellation confirmation number. Your account will remain accessible and active up until the day before your renewal date. After that date, you will have access to your account for a few months but will not be able to send emails.
PLEASE NOTE THAT UNTIL YOU PROVIDE US WITH A COMPLETED CANCELLATION REQUEST, YOUR ACCOUNT WILL BE CHARGED MONTHLY (OR ANNUALLY, IF THAT IS YOUR ACCOUNT TYPE) FOR YOUR SUBSCRIPTION FEE. INACTIVITY IN YOUR ACCOUNT WILL NOT CONSTITUTE A CANCELLATION. YOU WILL BE RESPONSIBLE FOR ANY OUTSTANDING BALANCES AS WELL AS RELATED COLLECTION COSTS. IF, FOR ANY REASON, AN UPLOADED CONTACT LIST IN YOUR ACCOUNT IS NOT APPROVED, YOU, "THE CLIENT," ARE RESPONSIBLE FOR CANCELING YOUR ACCOUNT.WARRANTY DISCLAIMER: RELEASE AND REMEDIES
You agree that this site, products and service (which includes custom offerings) are provided on "As available" and an "As is" basis. By using the site and any services or products related to the site, which includes any action you take related to you reliance, is your risk. At Benchmark, we will not warrant this type of use of the services, site or products, and we do not claim that our site, products or services will be free of errors or without interruption. We offer no guarantee or warranty of your results from our site, services or products . We disclaim any warranties, both implied or otherwise, of fitness for a purpose, non-infringement or merchantability of the site or services. We will make no statement, written or oral, that will create warranty that is not specifically explained or contained in this agreement. If you breach the terms and conditions of any third party services or third parties, we are not responsible or liable. We are not liable for the reliability or accuracy of any third party services, opinion, advice, content or statements, which includes hosted events, services, products or surveys that is used or purchased from other customers or third party services. Any claim you assert after 12 months from the action underlying such claim will not be considered valid. We will make commercially reasonable strides to repair the products, services or sites related to the claim, as a remedy for nonperformance or failure of the site, services or products.
As the law permits, you release us from any liability or claims related to content on your site, materials you use with the site, products or services, the conduct of other customers, their subscribers, or issues that relate to the remote access of your devices or computers that allows our personnel to troubleshoot our services, products and sites. You waive civic code (California) 1542 (if you live in California), or similar provisions in other areas and jurisdictions if you live in such areas or jurisdictions.
LIMITATION OF LIABILITY
With the exception of a death or injury that relates to our negligence, to the maximum extent of the law, under no circumstances or legal theory, tort, contract or otherwise, shall we or any of our partners, service providers, account providers, employees, third party suppliers, distributors or agents (named in this document as Benchmark Email), be liable for damages, monetary or otherwise, stemming for indirect, direct, special, cover or incidental reliance or consequential damages, even if we at Benchmark have been informed that these damages are possible, and for claims by any other party, regardless of the way or form of action, in contract tort, which includes product liability and negligence.
THE MAXIMUM LIABILITY THAT WE AT BENCHMARK ARE LIABLE FOR IS LIMITED TO WHAT YOU PAID FOR THE USE OF OUR PRODUCTS, SITE OR SERVICES IN THE YEAR PRIOR TO THE APPLICABLE CLAIM, LESS DAMAGES THAT WERE ALREADY PAID BY BENCHMARK IN THAT SAME 12-MONTH PERIOD OF TIME. SOME AREAS AND JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL AND INCIDENTAL DAMAGES, AND THIS LIMITATION AND EXCLUSION MAY NOT APPLY.
With this document, you acknowledge and agree that we determine our pricing in reliance on the limitations of liability and disclaimers of warranty set forth here, and that they reflect the allocation of risk between our company and you, forming a critical basis between the two parties.
Benchmark reserves the right to modify and/or discontinue the Services, whether temporarily or permanently, with or without notice to the users, and Benchmark shall not be liable to you or any third party for any such modification and/or discontinuance of the Services. Benchmark further reserves the right to make revisions, modifications, additions, deletions or any such changes to this Agreement at its sole discretion, at any time, with or without notice to its users.
You agree to indemnify and hold Benchmark, subsidiaries, affiliates, officers, agents, representatives, successors, members, principals and other partners and employees harmless from any loss, liability, claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Site or services set forth in this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations, obligations and warranties set forth above. Benchmark reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not, in any event, settle any matter without the written consent of Benchmark.
BENEFICIARIES (THIRD PARTY)
Nothing in this agreement, implied or expressed, is meant to confer upon any person other than the respective and permitted successors, or assigns of the parties, any obligations, liabilities, remedies, or rights.
Only individuals and organizations that can enter into legally enter into binding contracts may use Benchmark's Products. If you use its Products on behalf of an organization, you represent that you have the authority to bind the organization by such use.
You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
If any action or proceed to enforce these rights takes place, the prevailing party will be permitted and entitled to recover attorney's fees and costs.
If there is any dispute about or involving the Services provided by Benchmark, by using the Services, you agree that the dispute will be governed by the laws of the State of California without regard to its conflict of law provisions. You agree to personal jurisdiction by an arbitrator or mediator and the federal courts of the State of California. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial (or other) Arbitration Rules (including the Emergency Interim Relief Procedures), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You agree to be bound by these terms and conditions, including Section 19 thereof, which provides that you desire to resolve disputes relating to Benchmark Internet Group through arbitration; and by agreeing to arbitration, you are giving up various rights, including the right to trial by jury.
INTERNATIONAL USE: PROHIBITED BY RESTRICTIONS AND LAWS
In regards to the global and international nature of the web, you must comply with local rules where you live or your organization resides. More specifically but without any limitation, you must comply with any applicable laws in regards to the transmission or transfer of technical data that is exported to or from the U.S. or the place where you live or dwell. Our site and products are operated by us from our offices in the U.S., and we make no promises that our products, site or services are available or appropriate for use in other countries and locations. If you access our service or site from other countries, you do so at your own risk and are responsible for full compliance with any rules, laws or regulations of those locations. Our site is not offered in places where it is prohibited by law. In accordance with the European Directive 95/46/EC and any applicable implementing laws in your jurisdiction, including and in respect to subscriber or customer personal data, you agree that we are a data processer and you are a controller of data, and you must comply with any obligations within your role as a data controller (under applicable laws). We agree to process your customer and subscriber data per and in accordance with your instructions, the instructions in this agreement, and any other instructions that are given in the future. We will continue to take adequate organizational and technical measures against the unlawful or unauthorized accidental loss, destruction, damage and processing of your customer data (see privacy statement).
UK CUSTOMERS AND SITE VISITORS
If you access this site from the United Kingdom or other locations, certain sections will not apply to you, but may be adjusted in accordance to rules of the host country (providing they do not circumvent or violate this TOU).
RESTRICTED PEOPLE; DATA, PRODUCTS, EXPORTING OF THE SITE
This agreement defines that you are not a restricted person. This means, by definition, that you, any officer, director, shareholder using the product or service on behalf of you are not part of an entity prohibited in the United States from engaging or processing transactions. This definition and designation may be periodically updated and confirmed by the United States Treasury Department. A restricted person falls under the designated laws, guidelines and restrictions if money laundering, as designated by the treasury or other government organizations. This may also include anyone who is listed on the denied persons, company or entities list by the United States Commerce Department. This also includes anyone who has or is suspected of engaging in chemical or biological weapons, nuclear, missiles or other activities that U.S. citizens may not contribute or involve themselves in without permission of U.S. government license, or is owned or acting on behalf of a restricted person. During this agreement, if you become a restricted person, you must notify us within 24 hours. We have the right to cancel or terminate your account without warning, effective immediately, with no liability to you provided. However, if there is any doubt, you remain liable to our company. You also agree that you will not use our products or site to either facilitated, participate in or conduct any transactions with restricted persons, except for those authorized in writing by the U.S. government beforehand. You cannot export or remove from the U.S., or allow re-export or export of our site, products or software, or any product, direct or otherwise, which includes technical data, and violates any laws, restrictions or regulations of any applicable country or the United States.
MINIMUM BINDING AGE
Our site, services and products are only available to organizations or people who can sign legally binding contracts under any applicable laws. Our service, sites or products are not available to anyone under the age of 18, so if you are not at least 18 years old, you cannot use our site or products. If you use our site, service or products on behalf of any organization, you warrant and represent that you are able to bind such organization by your very use of our products or site.
If any term or provision of this Agreement is determined to be illegal, unenforceable or invalid in whole or in part for any reason, such illegal, unenforceable or invalid provision(s) or part thereof shall be stricken from this Agreement, and such provision(s) shall not affect the legality, enforceability or validity of the remainder of this Agreement. If any provision or part thereof is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor to the stricken provision as is legally possible.
THIRD-PARTY SITES AND SERVICES
Our products, sites and services use many social tools that could let you access, manage content and post content on social media networks. Our tools also may enable you to use our products to analyze and access information on social networks. You grant us permission to access those sites and give you this particular functionality.
You agree to follow and abide by the TOU of third-party services, and must abide by this TOU, even if there's anything in those third-party terms that contradict our terms of service. You may not use third-party TOU to circumvent restrictions in our terms.
We may terminate the ability of any of our third-party services or partners to access or interact with our site, with no liability to the third party or you. These third-parties may try to take steps to change or impact our ability to provide you with some or all of our features at any time, and we will not be liable for any of these actions. We at Benchmark accept no responsibility for third-party content, policies, quality, nature or reliability. To use our services or site, you must have a social media account or email address that is valid. Paying third-party fees associated with those networks and services is your sole responsibility. You also agree that the ability to utilize features associated with third parties may be subject to TOU, capacity charges, contracts or expenses, all that are your responsibility, and may be established by your internet service provider, email service, or other service providers, which are your responsibility alone. You agree that the use of our product does not violate any restrictions or TOU by your email provider, or other applicable service providers. In no way will any reference to third-party products or services be seen as an endorsement of those third-party services or products.
MARKETPLACE AND COMMUNITIES
Our site may possibly feature sections or areas where you can post information publicly or communicate with others (blogs, message boards, etc.), write reviews of merchants and submit other content, which includes the Benchmark Email Marketplace or Benchmark Email Community. When you agree to follow this TOU, you are showing that you will be responsible for any posts you make or any use of our communities. All consequences of posts or actions in our community or message boards are yours. You agree that Benchmark is not in any way responsible for the content of posts within the community, and thus we have no duty, nor are we obligated to correct or fix erroneous statements. When you post information in the community, it may be available or accessible to any person with access to the Internet. Thus, any personal information you post may be used by others, collected or read. As part of this agreement, you agree that any time you use the community or message boards, you do so in complete compliance with both this agreement and any other applicable laws. You also agree to follow and abide by the Benchmark Community Terms and Conditions of Use http://www.benchmarkemail.com/TermsOfUse and the Benchmark Email Marketplace TOU in regards to the use of our marketplace or communities http://www.benchmarkemail.com/Partner.
If you violate any rule or provision of the TOU, community or marketplace, we reserve our right to terminate your Benchmark Email or Benchmark Events account, access to our site or service, or access to our message boards or community. Without obligation, we reserve the right to look into or investigate your use of the Benchmark Community (or communities) for any number of reasons, including to see if you are complying with applicable laws, determining if you violated rules of the community, or complying with governmental request and the legal process. While we host the community, we are under no such obligation to continue hosting or maintaining said community. We reserve the right to change or modify, or even shut down our community, without notice and with our own discretion. Services and products offered or promoted in the Benchmark Email Marketplace are the sole responsibility of the entity or person who created the posting(s). We are not responsible - nor do we endorse - products or services in the Benchmark Email Marketplace. We are not responsible for any transactions, purchases or products that originate in the marketplace.
JOBS AND CAREERS OFFERED ON OUR SITE
On occasion, we might list available employment on our site. These postings are information only and can change without notice. You should not assume or construe that this information is an employment offer, nor should you assume that info on the site is a solicitation for employment that is not authorized by the regulations and laws of your location.
FULL EFFECT AND FORCE OF THIS AGREEMENT
If any part of this TOU is found to be either invalid or unenforceable, that specific provision will be eliminated to the minimum necessary extent so that this TOU is still enforceable and still in full effect.
As part of this agreement, you agree to execute any documents and take actions that are reasonably required to execute any purpose of this TOU.
The titles of the paragraphs within this agreement have no legal or contractual effect, and are merely for convenience.
No joint venture, partnership, agency or employment is created as part of this TOU. This gives you no authority to bind us in any respect.
This Agreement represents the entire agreement between you and Benchmark with respect to your use of the Services, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Benchmark with respect to your use of the Services.