Software Terms of Service

This is a legally binding contract so please read it carefully. The Software you use here is licensed, not sold, to you for use only under the terms of this document.


Your use of Silverpop’s Software accessed through acceptance of these Terms of Service is subject to and governed by the Terms of Service in effect at the time of your use and means you represent that you agree to abide by them and have the authority to accept these Terms of Service. IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY, THEN YOU MAY NOT CLICK ACCEPT OR USE THE SOFTWARE. By your clicking the box indicating your acceptance of these Terms of Service, you agree that act constitutes your signature, acceptance and agreement with the Terms of Service as if actually signed by you in writing.

Silverpop reserves the right to update and change these Terms of Service from time to time without notice to you. If you are a licensee of other Silverpop Products or Services, the terms of any agreement associated with those individual Products or Services, and not these terms of Service, govern.

1.2 Your use of the Software is subject to the Silverpop Privacy Policy (http://www.silverpop.com/marketing-company/trust/privacy/index.html) and the Facebook Platform Policies (http://developers.facebook.com/policy/), as may be updated from time to time, and in effect at the time of your use.

1.3 By signifying your acceptance of these Terms of Service or making any use of the Software, you (i) represent and warrant that you are at least eighteen (18) years of age, and (ii) irrevocably accept the Terms of Service in effect at the time of your use. If you are an individual acting as a representative of a corporation or other legal entity which wishes to use the Software, then you represent and agree that you have the authority to accept these Terms of Service on behalf of such corporation or other legal entity.

1.4 You are responsible for maintaining the confidentiality of your password established to obtain access to the Software and you are fully and solely responsible for all activities that occur under your account, whether authorized by you or not. It is your responsibility to take adequate precautions with your password and to immediately Silverpop of any unauthorized use.

2. LICENSE, CONTENT & INTELLECTUAL PROPERTY

2.1 You represent and warrant that you own or have rights to the text, images, audiovisual media and any other form of intellectual property, including the data, ideas, inventions, designs, patterns and processes in such material (collectively, "Content") posted on or through the Software and you have the right to grant Silverpop the licenses with regard to Content as set out in this agreement.

2.2 Silverpop owns all right, title and interest in and to all computer code, graphics, user interfaces and audiovisual content used to provide the Software, and the combination of all the elements on the Software. Silverpop reserves all rights to the Software that are not expressly granted herein. For the avoidance of doubt, you do not have the right to modify, adapt, translate, or reverse engineer any portion of the Software and you do not have the right to index or aggregate any portion of the Software (either by hand or by means of a robot, spider, or other device). Nothing in this Agreement will be construed as granting you any property rights in the Software or to any invention or any patent, copyright, trademark or other intellectual property right that has been issued, or that may issue, based on the Software.

2.3 By using the Software, you are granting Silverpop an irrevocable, nonexclusive, worldwide, royalty-free, sublicenseable and transferable right and license to use, reproduce, create derivative works of, distribute, publicly perform and publicly display your Content on and through the Software and on and through services affiliated with Silverpop, regardless of the form of media used or of whether such services now exist or are developed in the future and warrant that you have the right to grant the same.

2.4 Silverpop may preserve your Content and may also disclose such Content, with or without notice to you: (a) in accordance with Silverpop’s Privacy Policy (http://www.silverpop.com/marketing-company/trust/privacy/index.html), (b) to comply with legal process; (c) to enforce these Terms of Service; (d) to respond to claims that your Content violates the rights of any third party; or (e) to protect the rights, property, or personal safety of Silverpop, its users and the public.

2.5 You understand that posting your Content on or through the Software is entirely voluntary and will expose your Content, except for password and login credentials, to public display in a non-confidential manner.

2.6 Your disclosure of the Content does not violate a confidential relationship with any third party, establish a confidential relationship with Silverpop or any of its Clients or obligate Silverpop or any of its Clients to treat your Content (or any related materials) as secret or confidential.

2.7 You represent and warrant that your use of the Software will comply with all applicable laws and lawful governmental requests. Silverpop also reserves the right to report any activity that it suspects violates any law, rule or regulation to appropriate law enforcement officials, regulators or other appropriate third parties.

2.8 You are solely responsible for the acts and omissions of the users of the Software. To that end you will not provide, store or transmit, nor allow any user of the Software to store or transmit, any Content on or through the Software that (i) includes any personally identifiable information such as social security numbers, driver's license numbers, financial account numbers, customer passwords, credit or debit card numbers, government-issued identification numbers, information related to a person’s health or medical condition, or other similar information, (ii) violates these Terms of Service, (iii) or is or, in Silverpop’s sole discretion, may be in violation of any law, rule or regulation or of any third party's rights, or (iv) otherwise exposes Silverpop to any liability. You acknowledge and agree that Silverpop shall not be liable for any loss relating to any such Content provided to Silverpop in violation of this Section.

2.8.1 Silverpop has the right, but not the obligation, to remove or block Content from the Software that it determines in its sole discretion to be in violation of Section 2.8, these Terms of Service, is generally considered unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable, or that violates any party's intellectual property or that is detrimental to the quality or intended spirit of the Software. Silverpop also has the right, but not the obligation, to limit or revoke the use privileges of the account of anyone who engages in such behavior.

2.8.2 Silverpop will use common sense and business sense regarding Content or behavior allowed on or through the Software. Examples of unacceptable Content or behavior include:

      1. to publish, distribute or disseminate any obscene, sexually explicit , pornographic, or unlawful material or information;
      2. to harm minors in any way;
      3. to harvest or otherwise collect information about others, including without limitation email addresses and email interception, without their consent;
      4. to create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message or forge message headers or manipulate identifiers to disguise origin of transmission;
      5. to transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
      6. to interfere with or disrupt the Products, networks or servers connected to the Products or violate the regulations, policies or procedures of such networks or servers;
      7. to attempt to gain unauthorized access to the Products, other accounts, computer systems or networks connected to the Products, through password mining or any other means;
      8. to violate laws regarding the transmission of technical data or software exported from the United States through the Products;
      9. for illegal purposes;
      10. for illegal gambling or betting; or
      11. to promote the illegal use of alcohol, firearms or tobacco products;

2.9 You hereby irrevocably release and forever discharge Silverpop and its Clients and their affiliates and subsidiaries (together, the "Released Parties") from any and all actions, causes of actions, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever, which you now have or hereafter can, shall or may have against the Released Parties or their respecting successors and assigns with respect to the Content, including without limitation in respect of how the Released Parties, directly or indirectly, use the Content.

3. CANCELLATION AND TERMINATION

3.1 Silverpop, in its sole discretion, may terminate deactivate or delete your account and remove and discard any Content within the Software for any reason without notice, including and without limitation lack of use, or if Silverpop believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. In such event, any contracts, verbal or written or assumed, in conjunction with your account and all its parts, at Silverpop’s discretion, will be terminated as well. Silverpop will not be liable to you or any third party for any termination of your access to the Software.

3.2 After cancellation or termination of your account for any reason, you will no longer have access to your account and all information and Content in your account or stored on the Software may be, but is not required to be, immediately deleted by Silverpop. Silverpop will have no liability for information or Content that is deleted due to the cancellation or termination of your account for any reason.

3.3 These Terms of Service will remain in full force and effect while you use the Software. Those terms that can continue to operate after you stop using the Software (including without limitation your Content license to Silverpop and the General Terms in this Section), will survive.

4. Warranty, Limitation of Liability, Indemnification

4.1 You agree to defend, indemnify and hold Silverpop, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your actions in using the Software, (ii) a claim that you, or any third party using your account, infringed any intellectual property or other right of any person or organization using the Software, or (iii) the violation of these Terms of Service by you, or any third party using your Credentials.

4.2 THE SOFTWARE IS PROVIDED "AS IS" WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, AS TO THE OPERATION OF THE SOFTWARE, OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SOFTWARE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SILVERPOP AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, SILVERPOP AND ITS AFFILIATES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER INFORMATION CONTAINED IN THE SOFTWARE OR CONTINUITY OF SILVEPROP PROVIDING THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SILVERPOP DOES NOT WARRANT THAT THE SOFTWARE WILL BE AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, WILL BE SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SILVERPOP OR THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

4.3 NEITHER SILVERPOP NOR ITS AFFILIATES WILL BE LIABLE, UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SILVERPOP’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO SILVERPOP FOR THE SOFTWARE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (ii) ONE HUNDRED DOLLARS ($100.00).

5. MISCELLANEOUS

5.1 Support. Silverpop will not provide support for the Software at any time during the term.

5.2 International Use. The Software is hosted in the United States. If you use the Software from outside of the United States, you acknowledge that you are voluntarily transferring information (potentially including personally-identifiable information) and Content to the United States and agree that Silverpop’s collection, use, storage and sharing of your information and Content is exclusively subject to the laws of the United States, not of the jurisdiction in which you are located.

5.3 You will comply with all United States laws, rules and regulations applicable to the export of products, services, software and technical data regardless of the jurisdiction in which you are located.

5.4 U.S. Government Restricted Rights. If you are an agency of the United States Government, the Software is a "Commercial Item," as that term is defined at 48 C.F.R. Section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the United States Government (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All unpublished rights are reserved under the copyright laws of the United States. For purpose of any public disclosure provision under any law, it is agreed that the Software are trade secrets and proprietary commercial products and not subject to disclosure.

5.5 Copyright Infringement Notices. If you believe that any material available on or through the Software violates your copyright, you may send Silverpop a copyright infringement notice along with the details required by Section 512(c) of the Copyright Act.

5.6 These Terms of Service (including any additional terms, conditions, policies and agreements incorporated herein) are the entire agreement between Silverpop and you regarding the Software. Any dispute arising from or related to these Terms of Service will be governed by the laws of the State of Georgia without regard to conflict of law principles. The failure of Silverpop to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect and be enforceable.