By opening an Emma account, and using the Emma Service, you agree to abide by the terms set forth in this Agreement. You covenant that (a) you are at least eighteen years of age, (b) you are able to sign legally binding contracts on behalf of your company, and (c) you are representing yourself and your company honestly to your email recipients and to us. You also agree to maintain current information about yourself and your company, and to update that information as it changes.
You, us and ownership
Your use of the Emma Service confers no title or ownership to the Emma Service. We are granting you temporary, non-exclusive access to Emma Services that will endure as long as (a) the Agreement is not terminated in accordance with the terms of this Agreement, (b) you continue to provide payment for the Emma Service in a timely manner, and (c) you continue to abide by the terms of this Agreement. Further, You shall not transfer your right to use the Emma Service to another party or person, any such transfer or attempted transfer will result in immediate termination of the Agreement.
Emma owns all logos, graphics, software, algorithms, functionality, content (other than content owned by you or any third party), pages, features and processes that comprise the Emma Service. You agree not to copy, modify, re-package, reverse-engineer, disassemble, modify or otherwise use the Emma Service or its components in ways not explicitly allowed by this Agreement, without prior written consent from us. You also agree not to remove any proprietary notices or labels from the Emma Service.
Following the rules of permission marketing
The Emma Service is a permission marketing and communication service, designed to facilitate email communication and interaction between your organization and people who are interested in receiving email correspondence from you. Your use of the Emma Service carries a necessarily high standard of ethics and strict set of rules in order for both you and Emma to be compliant with the local, state, federal and international laws - as well as all pertinent guidelines and industry best practices - pertaining to use of email as a marketing and communication tool.
With that in mind, you agree to send emails using the Emma Service only to those recipients who have a clear relationship with you and/or your organization or who have expressly indicated their desire to receive emails from you.
Specifically, to receive emails from you, a recipient must meet one of the following criteria:
1. He or she has opted in to receive your emails, using a form that clearly indicates that by submitting his or her email address he or she will receive emails from you;
2. He or she has a clear relationship with you, as (a) a member who pays dues to belong to your organization, (b) a subscriber who pays a subscription fee to gain access to your organization's services, or (c) a customer who has purchased a good or service from you within the past eighteen months, in the course of which you have obtained that customer's email address.
If any recipient, regardless of his or her prior opt-in status or relationship to you, has indicated a desire not to receive emails from you - either during or prior to your use of Emma - you may not use the Emma Service to email that recipient.
Evidence of permission
By using the Emma Service to send emails to a recipient, you are representing to Emma that you have obtained permission to email that recipient. You must be able to provide evidence as to the origin of any email address with respect to how it was acquired and how permission was obtained. You agree to fulfill any requests for permission evidence by Emma to the best of your ability and in a timely manner, and you understand that any addresses for which you are unable to provide adequate information in a timely manner will be disallowed, along with the rest of the list(s) in which that address resides, should we deem it necessary and appropriate to disallow the entire list.
No rented, purchased or harvested addresses allowed
You may not use the Emma Service in conjunction with email lists or addresses that have been purchased, rented or otherwise obtained from a third party, or which have been collected using a script or other harvesting method, or which have been obtained without the email address owner's knowledge. Sending emails to any address or list obtained using one or more of these methods will result in the termination of your Emma account, immediately and without notice. We may also restrict access to your account, immediately and without notice, should we have reason to suspect that email addresses being added or imported into your Emma account fail to meet the permission criteria set forth in this Agreement.
Should any mailing sent through your Emma account receive an unreasonable number of complaints from Internet Service Providers or email watchdog groups (with Emma having the right to determine what qualifies as unreasonable), we reserve the right to suspend or terminate your account immediately. Furthermore, you will be responsible for paying all charges for use of the Service and any fines incurred by Emma as a direct result of one of your mailings, in cases where clear and direct evidence is presented to Emma by the fining organization.
Clearly identifying the origin of your email, and its content
You also agree to ensure that email messages sent through your Emma account are truthful and accurately identify the source of the message. In all emails, you agree to use subject lines that are in no way false or misleading as to the identity of the sending organization or the nature of the content contained in the email. You also agree to include your organization's physical address in all campaigns, as required by the Can-Spam Act of 2003, 15 U.S.C. 7701, et seq.
Using our opt out process
Allowing recipients of your emails to choose to stop receiving those emails is required by law. In order to ensure strict compliance, we require that you use the opt-out link and process provided with your email account and templates. You will in no way attempt to circumvent Emma's opt-out process. Furthermore, you understand that some recipients may choose to ask you to opt them out instead of using the opt-out link provided. In such cases, you agree to unsubscribe any such recipient manually, by changing the member's mailing status to "opt-out" using the tools provided inside your Emma account, and to make sure any such subscriber has been opted out prior to your next mailing being sent, and within ten (10) business days from the opt-out request, in lieu of any mailings being sent, as required by law.
Responsibility for account use and content
You are responsible for everything that happens in your Emma account, including the email addresses that are added, imported and stored, as well as the content published, distributed or linked to from your email campaigns. You agree to take full responsibility for any and all content distributed through your Emma account, and to abide by all pertinent copyright laws. Should we find reason to believe you have violated any laws in the course of your use of the Emma Service, or plan to violate any law using the Emma Service, we may suspend or cancel your account immediately and without warning.
Protecting your data and your privacy
We agree to hold your account information, lists and data in strict confidence. We do not now, nor will we ever, rent, sell or in any way share your email addresses with any third party. The only time Emma will ever share ANY information related to your Emma account with an outside organization is if (a) the outside organization is processing your payment for the Emma Service and requires certain information necessary for the transaction, (b) the outside organization is the federal government or other agency empowered to require us to divulge your personal or account information, (c) Emma is highlighting examples of your templates, campaigns or case studies and have obtained your permission prior to the divulging of such information, or (d) Emma is reporting on our overall customer base and activity, in which case we will only divulge general, aggregate (non-personally identifiable) information.
In creating your Emma account, you will create a username and a password that controls access to your account and all of the data stored within that account. The Emma Service stores an encrypted version of your password for added security, but you understand and acknowledge that you are ultimately responsible for maintaining control of that username and password and ensuring its proper use by authorized personnel only.
Adhering to the Safe Harbor Data Privacy Principles
Emma adheres to the data privacy principles of the Safe Harbor program, designed to provide U.S. companies with guidance on how to provide adequate protection for personal data from Europe as required by the European Union's Directive on Data Protection. Emma is listed in the United States Department of Commerce's Safe Harbor directory of self-certifying companies, available here.
Direct any Safe Harbor inquiries or requests to:
9 Lea Ave
Nashville, TN 37210
Things you may not do
The following list outlines many things, in addition to those already mentioned in this Agreement, which you may not do while using the Emma Service. Doing any one of these things may result in the suspension or termination of your Emma account, immediately and without warning.
By using the Emma Service, you explicitly agree not to:
- use the Emma Service to break any local, state, Federal or international laws or regulations, including but not limited to those related to spamming, e-commerce, obscenity, defamation or privacy;
- use the Emma Service to encourage or facilitate any illegal activities;
- use the Emma Service to harass, threaten or embarrass any person or organization;
- use the Emma Service to promote MLM (multi-level marketing) or Ponzi schemes;
- use the Emma Service to distribute illegal, pornographic or potentially harmful or offensive information, photos, software or materials, or include links to Web pages containing any such items (We reserve the right to use our own judgment in determining what is offensive); or
- use the Emma Service in conjunction with email addresses or lists that have been obtained in any way other than those outlined as permissible in this Agreement.
Your data, and our storage thereof
Your Emma account includes certain data storage – for lists, email campaigns and content, and response tracking information. We may choose to set limits on how much information may be stored, and may change those limits at any time. Should we impose any such limits, we will provide you with reasonable advance notice of such limits, and, when possible, offer you the option to either obtain more storage at an additional cost or maintain a lower level of storage without incurring additional costs. Emma is not responsible for the loss of any data in the event that you fail to request either more storage space or a transfer of existing data to another location and data is lost due to a change in limits or by your exceeding the existing limits.
Emma provides API Calls (“Calls”) to facilitate certain account activities without relying on the Emma application interface. These Calls are governed by the same policies set forth herein. The Customer shall not use the API to circumvent Emma's efforts to facilitate permission-based, commercial bulk email in the application. It is Emma's sole discretion to determine permissible use of the API and Calls. Any improper use of the API, as solely determined by Emma, will be grounds for immediate termination of Customer's account.
Payment for services
Like most commercial subscription services, Emma asks that you, the Customer, pay us, the Company, for your use of the Emma Service in a timely manner. Monthly activity, design fees, services and images are invoiced monthly and due not more than 15 days from the invoice date. All fees and prices are in US dollars. By entering credit card and billing information into the Emma system, you are authorizing us to charge that card for services rendered and according to the pricing specified in your Emma plan or a separate addendum to this Agreement, should such an addendum exist. All credit card transactions are handled through a secure HTTPS connection with a trusted third-party credit card processor. Lastly, like most commercial services, Emma reserves the right to suspend your account in the event you fail to pay the appropriate account fees on time, until such time as proper payment is received. In the event that your account is frozen for improper usage or non-payment, Emma may continue to charge Customer for the usage of the account, such usage includes storage of information, monthly activities and automatic updates that occur inside the account.
Right to inspect
For the purposes of providing you service and support, and to ensure that the terms of this Agreement are being followed, we reserve the right to inspect and monitor your account and data at any time, without notice, and to limit access to your account at any time should we have reason to believe that you have already, or may at some point in the future, violate any terms set forth in this Agreement.
Cancellation or Termination
Cancellation requests should be in writing, via email to email@example.com or firstname.lastname@example.org or by phone at 800.595.4401. Inactivity does not constitute automatic cancellation, and unless canceled pursuant to this clause, Customer will continue to be charged for subscription to the Services. Any request by Customer to cancel will take effect at the end of the month in which such request was made, and you will be responsible for payment for any services rendered up through the cancellation date. Emma will not prorate charges to the date of cancellation and the Customer will not receive a credit for any unused Services. If you have paid in advance for a certain period of time for the Emma Service or any portion thereof and cancel prior to the completion of that period, that payment is non-refundable.
Emma may terminate this Agreement at any time by notifying the Customer by email.
Should we be forced to terminate your account or you cancel your account, we will work with you to help retrieve email addresses and other appropriate data from your account within 30 days of termination of your account. After such 30 days, Emma makes no guarantees regarding the availability of your data, and Emma shall not be liable for the availability of your data for more than thirty days following the date of termination by either party.
Any dispute to a charge on your invoice must be made within 60 days of the date of the invoice that initially contained the disputed charge. Disputes can only be made in writing, via email to email@example.com or firstname.lastname@example.org or by phone at 800.595.4401.
Modifications to this Agreement
We may, from time to time, edit, append or otherwise modify the terms of this Agreement. Any changes will require notice from Emma to Customer. Your continued use of Emma after such changes indicates your acceptance of those changes and agreement to abide by them.
WARRANTIES AND DISCLAIMERS
THE EMMA SERVICE AND ITS RELATED SERVICES ARE PROVIDED "AS IS," AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE WILL NOT BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH EMMA SERVICES OR THIS AGREEMENT.
IN SHORT, WE CAN NOT AND DO NOT GUARANTEE THAT THE EMMA SERVICE WILL WORK IN ANY PARTICULAR WAY, NOR CAN WE GUARANTEE THAT IT WILL PROVIDE YOU WITH ANY PARTICULAR RESULT, LIKE MAKING YOU MORE MONEY OR INCREASING YOUR CUSTOMER BASE. YOU AGREE NOT TO HOLD US LIABLE, FINANCIALLY OR OTHERWISE, SHOULD THE EMMA SERVICE FAIL TO PERFORM THESE THINGS THAT WE CANNOT GUARANTEE IN THE FIRST PLACE. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY AMOUNT GREATER THAN THE FEES YOU HAVE PAID TO US FOR YOUR USE OF THE EMMA SERVICE OVER THE PREVIOUS TWELVE (12) MONTHS.
TO REITERATE: YOU, THE CUSTOMER, AGREE TO INDEMNIFY AND HOLD HARMLESS EMMA, INC., ITS OFFICERS, EMPLOYEES AND BUSINESS PARTNERS, FROM ANY CLAIMS ARISING FROM YOUR USE OF THE EMMA SERVICE OR ITS RELATED SERVICES.
The headers in this Agreement are provided as visual aids only and are not to be considered legally binding in any way.
This Agreement says everything there is to be said about the relationship between Emma and you and your use of the Emma Service and, therefore, it supersedes any other agreement about those topics, unless mutually agreed to in writing by both parties. You cannot, without prior written consent of Emma, transfer any of your rights or responsibilities under this Agreement. We can transfer any of our rights and responsibilities under this Agreement, with prior notice to Customer.
This Agreement will be interpreted in accordance with the laws of the State of Tennessee. Should Emma and you ever have to go to court over this Agreement or anything related to your use of the Emma Service, you agree to submit to the jurisdiction of the Federal and state courts in Davidson County, Tennessee. Before going to court, all parties agree to attempt to sort out any problem through arbitration in Nashville, Tennessee, in accordance with the regulations of the American Arbitration Association. If any provision of this Agreement is held to be invalid, that provision will be enforced to the extent possible and all other provisions of this agreement will be given full effect. If we fail to act to enforce any of the provisions of this agreement, that inaction will not be a waiver of our right to act and will not affect our ability to act later.
We may send you any notice that is required by this Agreement or otherwise via email or regular mail or by posting the notice on the Emma website. Any notice you send us should be sent to email@example.com or mailed 9 Lea Avenue, Nashville, Tennessee 37210.