Terms and Conditions
By contracting with Zero Moment of Truth, Inc. (“ZMOT Auto”), you hereby agree to the following:
1. Can-Spam Compliance Acknowledgment. Pursuant to the CAN-SPAM Act of 2003, you agree that you will ensure that the “From” line at the time of delivery of the interactive email advertisement will be accurate in all particulars.
2. Restricted Transmissions. ZMOT Auto prohibits, and may postpone, cancel or otherwise return to you advertisements that violate the ZMOT Auto Restricted Transmission Policy, including advertisements and other mass communications of the following nature:
(a) Selling or offering to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; 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.
(b) Displaying or marketing material that exploits children, or otherwise exploits children under 18 years of age.
(c) Selling or offering products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
(d) Providing 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.
(e) Posting or disclosing any personally identifying information or private information about children.
(f) Selling or promoting any products or services that are unlawful in the location at which the content is posted or received.
(g) Introducing viruses, worms, harmful code and/or Trojan horses on the Internet.
(h) Promoting, soliciting or participating in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting “get rich quick”, “build your wealth” and “financial independence” offerings.
(i) Engaging in any libelous, defamatory, scandalous, threatening, harassing activity.
(j) Posting 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.
(k) Providing content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
(l) Any such other advertisements or other content that ZMOT Auto determines inappropriate.
3. Rights of Re-Use and Grant of License. As further consideration to employing ZMOT Auto to provide the email marketing services, you hereby authorizes ZMOT Auto to republish the advertisements mailed on your behalf (following the emailing of said advertisement) solely for ZMOT Auto’s promotional purposes, and accordingly you hereby grants ZMOT Auto a fully paid license in perpetuity to ZMOT Auto to republish advertisements emailed using the ZMOT Auto platform solely for ZMOT Auto’s promotional purposes.
4. Warranties & Limitation of Liability. ZMOT Auto hereby disclaims all warranties, including implied warranties of merchantability or fitness for a particular purpose; provided, however, that notwithstanding the disclaimer of warranties herein ZMOT Auto does hereby warrant that in the provision of the services contemplated herein that ZMOT Auto complies with all laws and regulations promulgated by the United States. Customer hereby warrants that it has reviewed its advertisement in all particulars prior to being deployed, and that such advertisement does not violate in any capacity the laws of the United States, or any individual State wherein it is mailed (other than in regard to ZMOT Auto’s warranty described above). Except with respect to the indemnification obligations detailed in paragraph 5 below, (i) each Party’s maximum liability under this Agreement shall be limited to the amount of Fees paid to ZMOT Auto under this Agreement; and (ii) neither Party shall be liable to the other for any indirect, incidental, consequential, or special damages (including but not limited to damages to business reputation, lost business, or lost profits), whether foreseeable and however caused, even if advised of the possibility of such damages.
5. Indemnification. ZMOT Auto shall protect, indemnify, hold harmless, and defend Customer for claims arising pursuant to a breach by ZMOT Auto of (i) the terms and conditions herein, or (ii) its warranties. Customer shall protect, indemnify, hold harmless, and defend ZMOT Auto from claims brought (x) for breaches of the Terms and Conditions herein, (y) pursuant to a breach of its Can-Spam Compliance duties pursuant to paragraph 1 hereof, and (z) for breaches of the warranty above.
6. Intellectual Property. The Customer acknowledges that ZMOT Auto shall retain all right, title and interest under applicable contractual, trade secret, trademark, copyright, patent and related laws in the ZMOT Auto services, its software, the ZMOT Auto email database, and the ZMOT Auto marketing materials; and accordingly, Customer hereby specifically acknowledges and agrees that it will not use the ZMOT Auto services for purposes of gaining a competitive advantage against ZMOT Auto or in any capacity to further efforts to reverse engineer same. The Customer acknowledges and agrees that the ZMOT Auto services are unique and the result of millions of dollars of investment and years of development, and that any breach of ZMOT Auto s rights in and to the Intellectual Property would be irreparable. ZMOT Auto hereby acknowledges and agrees that the advertising plans, logos and other marks of the Customer are the property of the Customer, and accordingly ZMOT Auto shall not use such intellectual property other than in the performance of the services described herein; provided, however, that ZMOT Auto shall be entitled to re-use the advertisements in accordance with Paragraph 4 above, and ZMOT Auto shall have the right to list Customer in the ZMOT Auto customer list.
7. Cancellation Policy. Upon receipt of a signed Insertion Order work begins, and expenses are incurred. Therefore, Insertion Orders cannot be cancelled once submitted with signature.
(a) ZMOT Auto will not be liable to Partner for any delay or failure in its performance of any of the acts required by this Agreement if and to the extent that such delay or failure arises beyond the reasonable control of ZMOT Auto, including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, internet downtime, material or component shortages, supplier failures, embargoes, earthquakes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, flood, epidemics, riots and strikes.
(b) This Agreement will be governed by and construed in accordance with the laws of the State of California, which are intended to supersede any choice of laws rules which might require the application of the laws of another jurisdiction. Both parties hereby consent to the jurisdiction of the state courts of California with respect to actions brought to enforce or interpret this Agreement and all other disputes between the Parties. Venue for all lawsuits shall be in Monterey County, California. The prevailing Party in any lawsuits, including appeals, shall be entitled to an award of its reasonable attorney’s fees and costs. All Parties expressly waive trial by jury and agree any dispute shall be decided by a judge.
(c) This Agreement will be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, representatives, successors, and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole, or in part, without the other Party’s prior written consent.
(d) No waiver of any provision of this Agreement shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a continuing waiver in any other instance.
(e) This Agreement (including the exhibits, amendments and addenda hereto which are incorporated herein by this reference) sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters of intent, agreements, covenants, negotiations, arrangements, communications, representations, understandings or warranties, whether oral or written.
(f) eStamps are valid for 364 days from the date of purchase, and thereafter eStamps shall expire and be no longer valid.
(g) The terms and conditions herein may be amended in the sole discretion of ZMOT Auto, and such amendments will be controlling on Insertion Orders or orders submitted for email services from the date posted forward until future amendment, if any.
9. Security Policy. Your payment and personal information is always safe. Our Secure Sockets Layer (SSL) software is the industry standard and among the best software available today for secure commerce transactions. It encrypts all of your personal information, including credit card number, name, and address, so that it cannot be read over the internet.