TERMS OF USE
THE FOLLOWING TERMS (THIS "AGREEMENT") DESCRIBE THE CONDITIONS PURSUANT TO WHICH PITNEY BOWES INC. ("WE", "US" OR "PITNEY BOWES") OFFERS YOU (A "USER") ACCESS TO THE SERVICES (THE "SERVICES") ON THIS WEBSITE (THIS "SITE"). BY CLICKING THE "I AGREE" BUTTON BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN, AS AMENDED FROM TIME TO TIME BY PITNEY BOWES IN ITS SOLE DISCRETION. IF YOU ARE USING THIS SITE, ACCESSING THE SERVICE AND/OR ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATE OR OTHER BUSINESS ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL POWER AND AUTHORITY TO ACT ON BEHALF OF SUCH ENTITY AND TO BIND IT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SITE OR THE SERVICES.
Terms of Use; Acceptance of Contract Terms.
The following are terms of an agreement between you and Pitney Bowes. By accessing, browsing or using pbSmartConnections.com, any related blog, and/or your extranet site (collectively, the "Site") or by logging in to your pbSmart™Connection account or accessing the Services via any API interface, you acknowledge that you have read, understood and agree to be bound by these terms and the terms of our privacy policy located at www.pitneybowes.us/legal/privacy-statement.shtml. If you do not agree to these terms and/or to the terms of the privacy policy, please do not use the Site or the Services. Users should check these terms of use and the privacy policy periodically. By posting updated versions of the terms of use and/or the privacy policy on the Site, or otherwise providing notice to you, Pitney Bowes may modify the terms of use for the Site, the privacy policy or any Services in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of any such revisions on the Site or upon your receipt of notice from Pitney Bowes, as the case may be. By accessing, browsing or using the Site or Services after these terms of use and/or the privacy policy are revised, you expressly agree to accept those revisions.
User Requirements
a. You agree to provide the Site with accurate information in connection with the purchase of any Service(s) obtained via the Site and in connection with the creation of your account therefor. You further agree to maintain and update such User and/or account information as necessary. You are responsible for maintaining the security of your account, passwords, and files.
b. Users must be at least eighteen (18) years of age. By using the Site and/or the Services, you represent and warrant that you are not less than eighteen (18) years of age and that your use of the Site and/or Services does not violate any applicable law or regulation. Pitney Bowes may terminate its Agreement with you without warning if we have reason to believe you are less than eighteen (18) years of age.
c. Pitney Bowes will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password or provides other appropriate account identifying information to Pitney Bowes. Pitney Bowes shall not be responsible or liable for the actions of any individuals who misuse or misappropriate your contact lists or other assets using
your username and password or other appropriate account identifying information.Acceptable Use
a. With regard to the content of any communications you make through this Site or in connection with the Services, you agree to remain solely responsible, and agree to not submit or otherwise communicate materials that are unlawful, defamatory, abusive, harassing or obscene. You also agree that you will not communicate anything to this Site or in connection with the Services that violates any right of a third party, including copyright, trademark, privacy or other personal or proprietary rights.
b. You agree that you will not use the Services for the sending of unsolicited email, and will comply in all respects to the legal requirements of the CAN SPAM Act of 2003 and all applicable regulations.
c. Every email message you send in connection with the Services shall contain a prominent "unsubscribe" link that allows the recipient to permanently remove themselves from your mailing list and prevent further communications from you. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Pitney Bowes. You will not remove, disable or attempt to remove or disable any such links. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission, and update the email addresses to which messages are sent through your Pitney Bowes account. Under the CAN SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
d. You agree that the "from" line of any email message sent by you using the Services will accurately and in a non-deceptive manner identify your organization, your product or your service.
e. You agree that the "subject" line of any email message sent by you using the Services will not contain information that would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
f. You agree to include your valid physical address according to the United States Postal Service in any email message you send using the Services.
Prohibited Content and Activities.
Pitney Bowes prohibits the use of the Site and the Services by any person or entity that:
Non-U.S. Users and Customers.
a. You represent and warrant that with respect to your customers and potential customers who reside outside the United States, in compiling and maintaining your email distribution list, composing and sending email communications via the Services, maintaining applicable links, and collecting information as a result of individuals visiting your website or otherwise, you have complied, and will comply, with all data protection, privacy and electronic communications laws and regulations applicable to the countries into which you are sending any form of email communication via the Services, including without limitation, with respect to Canada, the Fighting Internet and Wireless Spam Act (FISA), with respect to the United Kingdom, the Data Protection Act, and with respect to the European Union, the national laws of the respective member states of the European Union and the regulations relating to the European Union Privacy and Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, maintained, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides, obtained all necessary consents, and provided all required information in such communications, to enable Pitney Bowes to receive and process that data and forward such communications to that individual on your behalf in compliance with applicable law.
b. In addition, you further agree that in providing services to your customers and potential customers who reside outside the United States you will: (i) comply with all applicable U.S. export control laws and regulations; (ii) ensure that all products, services and technologies received hereunder shall only be exported, re-exported, transferred or otherwise provided, directly or indirectly, in accordance with these laws and regulations; and (iii) that you will not export, re-export, transfer or otherwise provide, directly or indirectly, any products, services (including the Services) and technologies described in this Agreement to any destination or to any person if this would be prohibited, in whole or in part, by any U.S. law or regulation or would otherwise be prohibited by any U.S. Government entity or agency.
List Permission Practices.
In connection with the Services, you will access, import or otherwise use only lists for which all listed parties have consented to receive communications from you. You agree that you will not use any purchased or rented lists or any other third party mailing lists in connection with your use of the Services, including without limitation any distribution lists, newsgroups, or publicly available press or media addresses. Without limiting the foregoing, you agree that you will not use the Services to send any email or other electronic communications to any person who has opted out or otherwise objected to receiving such communications from you or another sender on whose behalf you may be acting.
Fees and Payment.
a. For the Services, in the absence of any special offer, discount or promotion to the contrary, you will pay monthly or annual subscription fees, or such other fees agreed upon by Pitney Bowes and you, as evidenced by your selection of options on the Site, and the applicable subscription or other fees shall be determined in accordance with the fee schedule that Pitney Bowes sets forth from time to time in its sole discretion on the Site (the Fee Schedule). Fees will be charged according to the highest number of unique email addresses in your account for which the Services are utilized. You will pay for the Services either (i) monthly in advance, or (ii) by providing Pitney Bowes with your valid credit card and authorization to charge such credit card the fees in accordance with the Fee Schedule on a monthly basis until your account is terminated. Pitney Bowes may, at any time, and from time to time, in its sole discretion, offer discounts or promotions that affect the fees to be paid under any applicable Fee Schedule, and in order to qualify for such discounts or promotions Users may have to comply with separate terms and conditions.
b. Charges will be made to your credit card on the date you first open your account, and for each subsequent month on the same day of the month that you first opened your account. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected. In the event that the credit card used for payment expires, you will immediately provide Pitney Bowes with the relevant credit card information for any successor credit card or a different valid credit card.
c. If you utilize the Services for any part of a month, payment is due for the full month. For any month for which you have already paid, during which you increase your number of unique email addresses to an amount that causes you to go to another pricing level in the Fee Schedule, you will be required to (i) pay fees in a prorated amount at the higher level rate on or before the date due for payment for the following month, and (ii) pay fees for the next subsequent month at the new higher pricing level. For any month for which you have already paid, during which you decrease your number of unique email addresses to an amount that causes you to go to a lower pricing level in the Fee Schedule, Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you in any manner for such decreased Services in that month; however, Pitney Bowes will appropriately charge you at the applicable lower pricing level on the next subsequent due date.
d. If Pitney Bowes is for any reason unable to effect automatic payment via your credit card, we will attempt to notify you via email and the Services provided to you will be disabled until payment is received. Amounts paid for the Services, including prepayments, are not refundable. Pitney Bowes is required to collect and remit sales tax from its customers located in state and local jurisdictions where software delivered as a service is taxable and where Pitney Bowes is deemed to have a tax nexus.
e. You are responsible for reviewing the Fee Schedule from time to time. The Fee Schedule is subject to change at any time in Pitney Bowes sole discretion. Pitney Bowes will use good faith efforts to notify you prior to the effectiveness of any changes to the Fee Schedule.
Termination, Disabling Access and Removing Content, and Data Retention.
a. Either party may terminate this Agreement at any time for any reason by providing notice to the other party. In the event that Pitney Bowes terminates this Agreement without cause, we will refund a pro rata portion of your monthly or annual subscription fee. Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you in any manner if it terminates this Agreement due to your violation of one or more terms of this Agreement or if you terminate this Agreement. Once terminated, we may remove any of your electronic communications and related data and files from our Site and any other storage.
b. Pitney Bowes, at its own discretion, may immediately block any email communications, disable your access to the Services or remove all or a portion of your content, without refund, if Pitney Bowes believes in its sole discretion that you have violated any applicable laws, the Acceptable Use provision, the Prohibited Content and Activities provision, the List Permission Practices provision, the Fees and Payment provision, or any other provision of this Agreement.
c. Pitney Bowes may delete any of your archived data within thirty (30) days after the date of termination. If your account is classified by Pitney Bowes, in its sole discretion, as inactive for more than one hundred eighty (180) days, Pitney Bowes will have the right to permanently delete your subscriber data.
Hosted Items.
Documents and images hosted by Pitney Bowes on Pitney Bowes controlled servers may only be used in connection with the Services. To the extent you use images provided by Pitney Bowes, Pitney Bowes hereby grants you a limited, non-exclusive, non-transferable right to use the images in an unaltered state solely in connection with your use of the Services. You will not copy a Pitney Bowes template or any other features or functionality from the Services and use such for any purpose other than sending email messages from the Services.
Remote Access and Third Party Providers.
a. You hereby authorize and grant Pitney Bowes the right and ability to remotely access your computers and other systems in connection with the use of the Services. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by Pitney Bowes or its personnel.
b. If you are accessing or using a Service through a third party service or web site (a "Third Party Service"), you agree and acknowledge that Pitney Bowes is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that Pitney Bowes may terminate such Third Party Service's ability to interact with the Site or Service(s) at any time, with or without notice, and in Pitney Bowes sole discretion, with no liability to you or to the Third Party Service.
Acknowledgment
For every email message sent in connection with the Services, you acknowledge and agree that Pitney Bowes may add an identifying notation stating "Email Marketing by Pitney Bowes," "Powered by Pitney Bowes," "Powered by pbSmart™Connection" or a similar message.
Software
This is an Agreement for access to Site and use of the Services, and you are not granted any right or license in or to any Pitney Bowes software. You are prohibited from using, reproducing, copying, in whole or in part, distributing, decompiling, decrypting, reverse engineering, disassembling, displaying, downloading, storing, transmitting, distributing, selling or otherwise commercially exploiting any part of Pitney Bowes software.
Indemnification
You agree to indemnify and hold harmless Pitney Bowes, its subsidiaries and affiliates, and their respective officers, employees and agents, from any and all third party claims or demands, including reasonable attorney's fees, arising out of your use of the Site and/or Services, your breach of the Agreement, your violation of any applicable law or regulation, and/or your infringement of any intellectual property right(s).
Disclaimer and Limitation of Liability.
a. EACH OF THIS SITE AND THE SERVICES ARE BEING PROVIDED "AS IS", WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. PITNEY BOWES, OUR SUBSIDIARIES, AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS SPECIFICALLY DISCLAIMS ANY IMPLIED REPRESENTATION, WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING BY LAW OR THROUGH A COURSE OF DEALING OR USAGE OR TRADE.
b. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF OUR SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. IN NO EVENT SHALL PITNEY BOWES, OUR AFFILIATES OR ANY OF OUR OR THEIR OFFICERS, DIRECTORS EMPLOYEES AND SUPPLIERS BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES OR THE SITE, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, OR OTHER CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND THAT IS BEYOND OUR CONTROL.
c. IN NO EVENT SHALL PITNEY BOWES OR OUR AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PITNEY BOWES MAXIMUM LIABILITY HEREUNDER SHALL BE FOR DIRECT, PROVABLE DAMAGES IN AN AMOUNT NOT GREATER THAN THE FEES ACTUALLY PAID BY YOU IN RESPECT OF THE TRANSACTION THAT IS THE SUBJECT OF THE CLAIM.
Trademarks and Copyrights
The trademarks, service marks, logos and trade dress of Pitney Bowes used on the Site are the intellectual property of Pitney Bowes and its affiliates and subsidiaries in the United States and throughout the world (collectively "Marks"). All third party trademarks on the Site are the property of their respective owners and are used under applicable law or with the owners' permission. Except as provided by applicable law, the Marks may not be used and/or reproduced without the written permission of Pitney Bowes. Those uses that are authorized must comply with Pitney Bowes' trademark usage guidelines (provided when necessary upon request). The images, text, organization and layout (collectively "Materials") of the Site are the exclusive property of Pitney Bowes Inc. and are copyrighted and protected by worldwide copyright laws and treaty provisions. Subject to fair use exceptions, Pitney Bowes does not authorize any downloading, distribution or republication of any Materials on the Site, without prior written permission. Any third party copyrighted material appearing on the Site is used under applicable law or with the owner's permission. Pitney Bowes will enforce its intellectual property rights to the fullest extent permitted under the law.
Notices
Except as explicitly stated otherwise, any notice to Pitney Bowes shall be given by email to [email protected] with a registered mail copy to Pitney Bowes Inc., One Elmcroft Road, Stamford CT 06926-0700, ATTN: Deputy General Counsel, or in the case of notice to you, to the email address you provide during the registration process for the Services or the last email address you provided Pitney Bowes. Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid.
Miscellaneous
The validity and interpretation of this Agreement and the legal relations of the parties to it shall be governed by the laws of the State of Connecticut, without regard to its conflict of laws principles. In the event of a dispute, the parties hereto agree to consent to the exclusive jurisdiction of the state and federal courts of the State of Connecticut. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated terms and conditions may be assigned by Pitney Bowes in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This OF THE TRANSACTION THAT IS THE SUBJECT OF THE CLAIM.
d. YOU UNDERSTAND AND AGREE THAT ANY ALERTS OR REMINDERS PROVIDED TO YOU THROUGH THE pbSmartCodes WEBSITE OR THE SERVICES MAY BE DELAYED OR PREVENTED BY A VARIETY OF FACTORS. WE USE GOOD FAITH, COMMERCIALLY REASONABLE PRACTICES TO PROVIDE ALERTS AND REMINDERS IN A TIMELY MANNER WITH ACCURATE INFORMATION, BUT WE CANNOT GUARANTEE THE DELIVERY OR ACCURACY OF THE CONTENT OF ANY ALERT OR REMINDER. IN NO EVENT WILL PITNEY BOWES OR OUR AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR ANY (I) DELAYS, FAILURE TO DELIVER, OR MISDIRECTED DELIVERY OF ANY ALERT OR REMINDER; (II) ERRORS IN THE CONTENT OF AN ALERT OR REMINDER; OR (III) ACTIONS TAKEN OR NOT TAKEN BY YOU OR ANY THIRD PARTY IN RELIANCE ON AN ALERT OR REMINDER OR THE FAILURE TO RECEIVE AN ALERT OR REMINDER IN A TIMELY FASHION.
17. Beta Trial Period Warranty and Support.
Because the process for preparing the product for general marketing and sale is not complete, the pbSmartCodes Website and the Services are not covered by warranty. We will, however, make reasonable efforts to keep the pbSmartCodes Website and the Services in service during the Beta Trial Period. We will be responsible for the evaluation and maintenance of the pbSmartCodes Website and the Services during the Beta Trial Period, and you will be provided with a service support number to call should you have any questions or if problems arise.
18. Beta Trial Period Confidentiality.
You agree that during the Beta Trial Period, (i) access to the pbSmartCodes Website and the Services are being provided to you on a confidential basis, (ii) that information related to the pbSmartCodes Website and the Services are confidential, and (iii) that you will refrain from discussing the pbSmartCodes Website and the Services with, or showing them to, third parties outside your company (other than providing Feedback to Pitney Bowes), or letting the public have access to the pbSmartCodes Website or the Services, unless requested to do so by Pitney Bowes.During the Beta Trial Period, Pitney Bowes may request that you provide testimonial responses to your experiences with the pbSmartCodes Website and the Services. If you provide us with such testimonial responses, we will have the right to market and otherwise distribute and/or display the testimonial responses, and use you or your business's name, logos and trademarks in press releases, web content and other marketing materials.
19. Notices
19. Except as explicitly stated otherwise, any notice to Pitney Bowes shall be given by email to [email protected] with a registered mail copy to Pitney Bowes Inc., One Elmcroft Road, Stamford CT 06926-0700, ATTN: Chief Counsel, Pitney Bowes Communications Solutions, or in the case of notice to you, to the email address you provide during the registration process for the pbSmartCodes Website or the last email address you provided Pitney Bowes with respect to your pbSmartCodes Account. Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid.
20. U.S. Government Users.
The pbSmartCodes Website and the Services are "Commercial Items" as that term is defined at 48 C.F.R. �2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. �12.212 or 48 C.F.R. �227.7202, as applicable. Consistent with 48 C.F.R. �12.212 or 48 C.F.R. �227.7202-1 through 227.7202-4, as applicable, the pbSmartCodes Website and the Services are being licensed to U.S. Government users (a) only as a Commercial Item and (b) with only those rights as are granted to all other users pursuant to the terms and conditions herein.
21. Miscellaneous.
The validity and interpretation of these Terms of Use and the legal relations of the parties to it shall be governed by the laws of the State of Connecticut, without regard to its conflict of laws principles. In the event of a dispute, the parties hereto agree to consent to the exclusive jurisdiction of the state and federal courts of the State of Connecticut. If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms of Use and all incorporated terms and conditions may be assigned by Pitney Bowes in our sole discretion with or without notice to you. You may not assign any of your rights under these Terms of Use to any other person without our prior written consent, which will not unreasonably be withheld. Any attempt by you to assign these rights without our prior consent is void. You may not transfer to any third party any rights you may have to access the pbSmartCodes Website or use the Services. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Certain of your obligations that by their nature extend beyond the term of these Terms of Use, including your limitation of our liability and indemnification obligations, will survive the termination or expiration of these Terms of Use. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.