Terms of Use

Updated 06/18/2014

IT IS IMPORTANT THAT YOU READ THESE TERMS AND CONDITIONS OF USE BEFORE USING THIS WEB SITE OR BEFORE USING THE SERVICES. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE OR YOUR LAST USE OF THE SERVICES. BY USING THIS WEB SITE OR USING THE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE, INCLUDING, YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEB SITE AND DO NOT USE THE SERVICES.

EnSpot.com, Inc. (the "Company") provides businesses and organizations with email marketing and related services under a variety of brand names (the "Services").

The following are the Terms and Conditions of Use for using this web site and using the Services. By logging in to the Services, by using this web site or by using the Services, you accept these Terms and Conditions of Use.

 

1. Services — Terms and Conditions

The Services are provided subject to these terms and conditions of use, and any guidelines, rules or operating policies posted on the Company's or the Service's web site, including without limitation the Anti-Spam Policy, and any Fee Schedule, as may be agreed to, posted or amended by the Company from time to time, which are incorporated herein by reference (collectively, the "Terms and Conditions of Use" or "Terms of Service" or "Terms"). The Company may modify these Terms and may discontinue or revise any or all other aspects of the Services in its sole discretion by posting updated versions of the Terms on the Company's or the Service's web site, or updating features related to the Services irrespective of the listing or description, or otherwise providing notice to you. Except as otherwise provided, all such changes shall become effective upon the posting of such revised Terms on the Company's or the Service's web site or updating such features related to the Services. The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services. If you are using the Services in your capacity as an employee, you must have the ability to bind your employer by your use of the Services. You must complete the registration form on the Service's registration page in order to use the Services. You may need to register separately for certain Services. You shall, and you certify that you will, provide true, accurate, current, and complete information to the Company in the registration form, in the CAN-SPAM Act required fields, and at all times during your use of the Services. Service personnel may from time to time access systems related to the services for the purpose of troubleshooting issues that arise in your use of the Services and 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 such personnel.

If you are accessing or using the Services through a third party service or web site (a "Third Party Service"), you agree and acknowledge that the Company is not responsible or liable for any actions of such third party, or for any aspect or result of such Third Party Service, and your use such Third Party Service is at your own risk. You further agree and acknowledge that the Company may terminate such Third Party Service's ability to interact with the Services at any time, with or without notice, and in the Company's sole discretion, with no liability to you or to such third party.

 

2. Representations and Acknowledgements

In consideration of the mutual covenants and consideration herein contained and exchanged, the adequacy of which are hereby acknowledged, you hereby represent, acknowledge and agree that:

  • Use of the Services will be governed by these Terms in their entirety.
  • The Services are subject to monthly service or subscription fees, and possibly additional fees, as further described in Section 3 below.
  • The Services may only be used in compliance with our Anti-Spam Policy, as further described in Section 5 below.
  • Use of the Services (or use of any content, images, documents, or email addresses within the Services) may not violate any applicable law, regulation, or agreement, including any intellectual property rights of others, copyright, trademark or patent rights, or contain libelous material, or material deemed to be obscene by your recipients.
  • Emails sent via the Services will include an opt-out, unsubscribe, and/or manage subscription mechanism that allows the recipient to remove their email address and related content and/or be added to a suppression list, and/or update their subscription preferences. Emails sent via the Services may also include service related links, notices, Company branding, and/or Third-party advertisements.
  • Emails sent via the Services, due to the technical aspects of the internet and other items beyond our control, may not be received by all of the intended recipients.
  • Except as may be required by law, neither party shall disclose any non-public or confidential information of the other party to the general public, or use such information to negatively affect the business of the other party in any way, without written permission from the other party. Among other things, the email addresses in your account shall constitute confidential information, and the Company shall not compile, buy, sell, rent, trade, or send unauthorized emails to the email addresses in your account.
  • These Terms shall be governed by and construed in accordance with the laws of the State of Florida without regard to legal principles pertaining to conflict of laws. In the event of a dispute concerning these Terms, the venue shall be in Miami-Dade County Florida, and the prevailing party shall be entitled to recover its reasonable collection agency and/or attorney's fees and all costs incurred in connection to said dispute, whether incurred in or out of court. If any provision of these Terms is held to be invalid or unenforceable or otherwise violates existing applicable law or subsequently enacted legislation, then such provision shall be modified to reflect the parties' intention solely to the extent necessary to comply with applicable law, and all remaining provisions of these Terms shall remain in full force and effect. ALL PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, CROSS CLAIMS OR THIRD PARTY CLAIMS) ARISIGN OUT OF, UNDER, OR IN CONNECTION WITH THESE TERMS.
  • The Services are provided 'as is'. You agree to hold the Company harmless from any liability or loss incurred due to your violation or breach of these Terms. The Company shall not be liable for delays or failure to deliver or perform due to acts of God; acts of other parties beyond the control of the Company; acts of civil or military authorities; acts of federal, state or local government or regulatory agencies; fires; strikes; floods; accidents; hurricanes; technology or internet failure, or, other similar events beyond its control. While the Company performs regular backups of the data used in the Services, the Company shall not be liable for failure of the backup system or loss of data and the Company highly recommends that you back up your own data on a regular basis. While the Services incorporate the use of multiple security measures to prevent unauthorized access to the data used in the Services, the Company shall not be liable for the failure of these security measures, or for the user's failure to protect the confidentiality of their username and password. The Company's sole and exclusive liability hereunder is to re-perform any non-performed services or, at the Company's option, refund the amount paid for any non-performed service.
 

3. Free Trial or Other Promotion, Service Fees, Payment

Free Trial or Other Promotion. The Services may be subject to a free trial or other promotion. Once you have completed or exceeded the terms of the promotion, the regular service fees will apply.

Service Fees. The Services are subject to regular service fees in accordance with a published fee schedule, service plan, subscription plan, or pricing tier, and any related policies or promotions (the "Fee Schedule"). Depending on the Fee Schedule you select, the service fees may be based on the highest number of unique email addresses in your account for the applicable month, or the total number of emails sent during the applicable month, or based on the average number of emails sent, or a custom structure, or a combination of structures. If you exceed the limits of your service plan, additional fees may be incurred pursuant to the Fee Schedule. If you select certain additional products or services, you will be billed for such products and services as according to the related Fee Schedule, which shall also be subject to these Terms. The Fee Schedules are subject to change from time to time at the Company's sole discretion, which would apply when the term of your current Fee Schedule expires. The Company will use good faith efforts to notify you in advance of any change that may affect the fees billed, however, you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees to be charged. Any actions taken by you in an attempt to circumvent the Fee Schedule and billing procedures are prohibited.

Payments. Fees will be billed monthly, or your pre-paid account may be debited monthly, even if you are not actively using the Services, pursuant to the Fee Schedule. Certain Services may be billed at the point of purchase. Fees are due when billed, or if you have established credit with the Company in writing, fees are due pursuant to the terms of the credit. All amounts are due and payable in U.S. Dollars. Any amounts past due to the Company shall accrue interest and/or late charges at the highest rate allowed by law until paid. Payments returned as insufficient funds, charge backs, etc., will be charged a service fee the greater of $25 or the highest rate allowed by law. Foreign checks will be charged a $25 service fee plus any bank charges. Certain payment methods may require payment of a processing fee which will be disclosed in advance if applicable. Access to the Services, or certain features within the Services, may be disabled until payment is received.

Closing an Account. To close an account, use the tool provided within the Services (if applicable), or email support@emsvc.com from the email address of a designated administrator of the account with written instructions to close the account. On any account that does not require a monthly payment, after one (1) year of not logging into the account, the account will be closed. On any account that is past due, the account may be closed. Upon closing an account, the data may be archived for up to one (1) year. A fee may be charged to recover archived data. After the archive period, the data will be deleted and no longer accessible.

 

4. Copyright and Trademark Information

This web site, and the information which it contains, is the property of the Company and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Company service names or logos may appear in this web site or within the Services, and the absence of displaying or listing a service name or logo does not constitute a waiver of the Company's trademark or other intellectual property rights concerning that name or logo.

 

5. Unsolicited Email and Spam

The Services may only be used to send email to recipients that have provided affirmative consent to the sender and all email sent via the Services must comply with the United States Federal CAN-SPAM Act and any other local laws that apply to the Sender. The Company actively monitors use of the Services, and may disable access to the Services, or use of features of the Services, or remove emails from the Service, or terminate Services, if it suspects a violation of this policy, or tampering with the Services, in its sole discretion. If you suspect a violation of this policy, please contact us immediately here.

What is affirmative consent?

"Affirmative consent" means that the recipient of electronic mail expressly consented to receive the message either in response to a clear and conspicuous request for the recipient's consent or at the recipient's own initiative. A recipient is deemed to have given affirmative consent if the electronic mail message is from a person other than the person to whom the recipient directly communicated consent if clear and conspicuous notice was given to the recipient that the recipient's electronic mail address could be transferred to another person for the purpose of that person initiating the transmission of a commercial electronic mail message to the recipient.

What is the CAN-SPAM Act?

The CAN-SPAM Act is a United States federal law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations. Despite its name, the CAN-SPAM Act doesn't apply just to bulk email. It covers all commercial messages, which the law defines as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service," including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email — for example, a message to former customers announcing a new product line — must comply with the law. Each separate email in violation of the CAN-SPAM Act is subject to federal penalties of up to $16,000, so non-compliance can be costly. But following the law isn't complicated. Here's a list of CAN-SPAM's main requirements:

  • Don't use false or misleading header information. Your "From," and "Reply-To," — including the originating domain name and email address — must be accurate and identify the person or business who initiated the message. The system confirms your "From" and "Reply-To" email address prior to sending email.
  • Don't use deceptive subject lines. The subject line must accurately reflect the content of the message.
  • Tell recipients where you're located. Your message must include your valid physical postal address. This can be your current street address, a post office box you've registered with the U.S. Postal Service, or a private mailbox you've registered with a commercial mail receiving agency established under Postal Service regulations. Once you enter this information into the Service in the appropriate fields, the Service automatically includes this information on each email.
  • Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. The Service automatically includes an opt-out mechanism for you.
  • Honor opt-out requests promptly. If the user uses the opt-out mechanism, the system automatically manages this for you. In some cases the user may email you directly with instructions to opt them out. You are responsible to opt the user out in that scenario.
  • Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to manage your email marketing, you can't contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the party that actually sends the message (i.e. creates and initiates sending of the email) may be held legally responsible*. You agree to hold the Company harmless from any liability or loss incurred due to your (or any agent acting on your behalf) violation or breach of these Terms.
  • For more information on the CAN-SPAM Act, go to: http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-bu...

Other laws may apply
You should check all related anti-spam laws to make sure you are in compliance. Here is a list of resources that may help:

How do the Services protect you?
The Services have a number of built in features that help to protect you from non-compliance with this policy:

  • Account Settings — Each account has dedicated fields for the information required by the Can-Spam Act, and you are not able to send email until you fill in the required information, including verifying your own email address. This information is then pre-populated into the header, footer and wrapper of the email. You shall, and you certify that you will, provide true, accurate, current, and complete information to the Company in the CAN-SPAM Act required fields, and at all times during your use of the Services, and not tamper with the header. footer o wrapper of the email.
  • Email Collection Pages & Verification — All email collection pages have language that informs the user of the collection of their email address, explains how their email address will be used, and asks for consent. In addition, the user will receive an email that requires them to click a link to verify their consent prior to being added to any email list.
  • Imported Lists — Even on our free or promotional programs, you are required to enter verifiable credit card information in order to be eligible to import lists. Imported lists are reviewed very closely for compliance and suspect lists may be automatically quarantined for further investigation and verification of the source of the list. If a list is found to be in violation of these Terms, it will be immediately removed.
  • Opt-Out — All email sent via the Services contain an opt-out or unsubscribe, and manage subscriptions mechanism. Email addresses are then removed from your active email lists immediately to prevent you from sending unwanted email.

* The Company and the Services are the service provider and are not the initiator or creator of the email.

If you have any questions in regards to your account being in compliance with this policy, please contact us, BEFORE YOU START SENDING, by opening a support ticket. We are happy to help you.