PDS eMarketer  Terms & Conditions of Use

This agreement sets out the legally binding terms of your use of the service provided by PDS eMarketer  to you (hereinafter referred to as “End User”, “You” or “Your”), and may be modified by PDS eMarketer  from time to time, such modifications to be effective upon posting of the modified agreement. By accessing, using and/or registering for the service provided by PDS eMarketer (hereinafter referred to as the “Service”), you agree that you have read and understand this Terms and Conditions of Use and all of its contents (hereinafter referred to as this “Agreement“), intend this Agreement to be the legal equivalent of a signed, written contract and equally binding, and that you will be subject to all of the terms and conditions set forth herein. You agree to review the Agreement periodically to be aware of any such modifications, additions, deletions or other changes, and your continued access, registration and/or use of the Service shall be deemed your acceptance of the modified agreement.

Description of Service

Pabodie Design Studios ("PDS") provides businesses and organizations with subscription based online software (PDS eMarketer ) , to collect visitor email addresses and to create, test, implement, manage, refine and report on online email campaigns (PDS eMarketer ).  PDS eMarketer may not be used for the sending of unsolicited email ("spam").

The following are the Terms and Conditions of Use for access to this web site and use of PDS eMarketer services. By purchasing a subscription on the order page and by logging in to your PDS eMarketer account you accept these Terms and Conditions of Use.

Representations and Acknowledgements

You hereby represent, acknowledge and agree that:

1. PDS eMarketer may not be used for the sending of unsolicited email ("spam").
2. PDS eMarketer may only be used for lawful purposes.
3. PDS eMarketer is subject to a monthly subscription fee determined according to the then current Pricing Schedule and based upon the largest number of email recipients contained in your combined mailing lists at any one time during the previous month. Refer to the Pricing Schedule below for current pricing.
4. The use of 3rd party mailing lists or Purchased mailing lists is strictly forbidden.  You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the PDS eMarketer . You agree that you shall not use any 3rd Party of Purchased lists in connection with your use of PDS eMarketer .
5. You acknowledge and agree that not all email messages sent through PDS eMarketer will be received by their intended recipients due to circumstances beyond our control including but not limited to server spam filters, individual recipient email program preferences, full mailboxes etc.
6. All email messages sent by you using the PDS eMarketer service must contain the PDS eMarketer "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
7. You will comply with the restrictions on content of email messages and activities using the PDS eMarketer as set forth or referenced in this Agreement.
8. You acknowledge and agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the PDS eMarketer .
9. You agree that the "from" line of any email message sent by you using the PDS eMarketer will accurately and in a non-deceptive manner identify your organization, your product or your service.
10. You agree that the "subject" line of any email message sent by you using the PDS eMarketer will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
11. You agree to include in any email message sent by you using PDS eMarketer your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
12. You agree that in any email message sent by you using the PDS eMarketer you will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.
13. You will adopt and maintain the Privacy Policy, which may be modified by PDS eMarketer from time to time.

The PDS eMarketer services are provided subject to these Terms and Conditions of Use, as they may be amended from time to time by PDS eMarketer , and include the PDS eMarketer 's customer Privacy Policy, as linked from all email generated from PDS eMarketer or otherwise furnished to you. By posting updated versions of the Agreement on this website, or otherwise providing notice to you, PDS eMarketer may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the PDS eMarketer in its sole discretion. All such changes shall become effective upon the posting of the revised Agreement on the PDS eMarketer 's website or Program pages.

Fee Schedule.

You are responsible for reviewing the Fee Schedule and the fees charged by PDS eMarketer . The Fee Schedule is subject to change at any time and at PDS eMarketer 's sole discretion. PDS eMarketer will use good faith efforts to notify you via email prior to the effectiveness of any change to the Fee Schedule. Repeated uploading and removing of unique email addresses in an attempt to circumvent PDS eMarketer 's Fee Schedule and billing procedures is strictly prohibited and such action will result in the removal of your account. Pricing is billed monthly, one month in advance and is based on the highest number of recipients in your combined contact lists during the prior month.

Payment.

Payment for PDS eMarketer will be made by a valid credit card accepted by PDS eMarketer . Fees are payable in U.S. dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize PDS eMarketer to charge your credit card for such amounts on a regular monthly basis beginning on the first day of purchase and continuing monthly until such time as your account is terminated. If PDS eMarketer is for any reason unable to effect automatic payment via your credit card, PDS eMarketer will attempt to notify you via email and your PDS eMarketer account will be disabled until payment is received. Amounts paid for the PDS eMarketer are not refundable.

Subscriber Opt Out.

Every email message sent in connection with the PDS eMarketer must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. 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 PDS eMarketer . You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission, and update the email addresses to which messages are sent through your PDS eMarketer 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. You agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.

Permission Practices.

You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the PDS eMarketer . You are not permitted to email to the following:

• Commercially purchased email lists
• Non-confirmed recipients who have not responded to the request for confirmation in an affirmative manner or who have not responded in any way.
• Distribution lists
• Newsgroups
• Unsolicited email addresses.

You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry standards. PDS eMarketer , in its sole discretion, shall determine whether your level of spam complaints is within industry standards, and its determination shall be final, binding and conclusive for all purposes under this Agreement. PDS eMarketer will terminate your use of its PDS eMarketer if PDS eMarketer determines that your level of spam complaints is higher than industry norms.

Prohibited Content.

PDS eMarketer prohibits the use of the PDS eMarketer service or web site by any person or entity that:

• Provides, sells or offers to sell pornography or illicitly pornographic and sexual material, 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.
• Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
• Provides, sells or offers services or content frequently associated with unsolicited email and spam, including but not limited to direct pharmaceutical sales, work at home businesses, credit or finance management, credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, and odds making and betting/gambling services.
• Posts any content that promotes or encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
• Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
• Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or otherwise objectionable content.
• Posts or discloses any personally identifying information or private information about children without their consent.
• Sells or promotes any PDS eMarketer or services that are unlawful in the location at which the content is posted or received.
• Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
• Promotes, solicits or participates in pyramid schemes or multi-level channel network marketing businesses
• Engages in any libelous, defamatory, scandalous, threatening, harassing activity.

Right to Disable Access. PDS eMarketer , at its own discretion, may immediately disable your access to the PDS eMarketer without refund if PDS eMarketer believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.

No Rights in Software.

This is an Agreement for services and access to this web site, and you are NOT granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the PDS eMarketer or any software, documentation, or data related to the PDS eMarketer ("Software"); remove any proprietary notices or labels from the PDS eMarketer or any Software, modify, translate, or create derivative works based on the PDS eMarketer or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the PDS eMarketer or any Software.

Compliance with Laws. You shall use the PDS eMarketer only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). PDS eMarketer may monitor your content and block any email messages, remove any such content or prohibit any use of the PDS eMarketer that PDS eMarketer believes may be (or is alleged to be) in violation of our Terms and Conditions.

Indemnification. You hereby agree to defend, indemnify and hold harmless PDS eMarketer and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement or your use of the PDS eMarketer service. In addition, you acknowledge and agree that PDS eMarketer has the right to seek damages when you use the PDS eMarketer for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement.

Intellectual Property Rights in Your Content. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the PDS eMarketer , you agree that such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to PDS eMarketer by email, you automatically grant and warrant that the owner of such content or intellectual property has expressly granted  PDS eMarketer a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.

Termination. PDS eMarketer is a pre-paid month-to-month service, and you may cancel your subscription at any time. You must cancel prior to your monthly renewal date or you will be charged your next month’s subscription fee. We do not prorate or refund our service.  Cancellations can be made by logging into your client portal at Pabodie Design Studios and by submitting a cancellation request via a support ticket or by simply cancelling your subscription service. Upon receipt, we will schedule your account for cancellation. Your account will remain accessible and active up until the day before your renewal date. At that time, we will permanently cancel and delete from our system your all email lists, campaigns, and reports.

PDS eMarketer may terminate this Agreement or the PDS eMarketer , disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. PDS eMarketer shall have no liability to you or any third party because of such termination or action.

PDS eMarketer may delete any of your archived data within 30 days after the date of termination. After termination, PDS will process all unsubscribe requests within 30 days of your last email campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

Warranty Disclaimer

You expressly agree that use of the Service is at your sole risk. The Service is provided by PDS eMarketer  on an “as is” and “as available” basis. PDS eMarketer  expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. PDS eMarketer  makes no warranties that the Service will meet your requirements and/or be uninterrupted, timely, secure or error-free, nor does PDS eMarketer  make any warranty as to the accuracy or reliability of any information obtained and/or downloaded through the use of the Service or that defects in the system and software will be corrected. PDS eMarketer  makes no warranty regarding any goods or services purchased or downloaded through the use of the Service or any third-party links or any information obtained or transactions entered into through the use of the Service. No advice or information, whether oral or written, obtained by you from PDS eMarketer  shall create a warranty not expressly stated herein. Furthermore, PDS eMarketer  makes no warranties concerning the suitability of the content provided through the Service for any purpose.

Modifications

PDS eMarketer  reserves the right to modify and/or discontinue the Service, whether temporarily or permanently, with or without notice to the users, and PDS eMarketer  shall not be liable to you or any third party for any such modification and/or discontinuance of the Service. PDS eMarketer  further reserves the right to make revisions, modifications, additions, deletions or any such changes to this Agreement at its sole discretion, at any time, with or without notice to its users.

Limitation of Liability

PDS eMarketer  shall not be liable for any damages whatsoever, whether direct, indirect, punitive, incidental, special or consequential, arising out of or in any way connected to the use of the Service or with the delay or inability to use the Service, or for any information, products and services obtained through use of the Service, or otherwise arising out of the utilization of the Service, whether based in contract, tort, strict liability or otherwise, even if PDS eMarketer  has been advised of the possibility of said damages. Furthermore, PDS eMarketer  shall not be liable for any damages arising from the interruption, suspension or termination of the Service, including, but not limited to, direct, indirect, incidental, special, consequential or exemplary damages, whether or not such interruption, suspension or termination was justified, negligent or intentional.

Copyright Agent.

If you believe any materials accessible on or from this web site or the PDS eMarketer infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting PDS eMarketer ’s copyright agent (identified below).

PDS eMarketer ’s agent for copyright issues relating to this web site is as follows:

Deborah Schisler
Compliance Manager
PDS eMarketer , Inc.
358 Main St.
Huron, OH  44839
Phone: (419) 433-4772
Fax: (866) 886-4111
Email: support@pabodie.com

In an effort to protect the rights of copyright owners, PDS eMarketer maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat offenders..

Username and Password.

As an End User of the Service, you will receive an end user account and password to access said account. You are solely responsible for maintaining the confidentiality and security of your account and password. You are solely responsible for any and all activity that occurs within your end user account while using the Service, including, but not limited to, the content located in all electronic mail messages sent through the Service from your account. You may modify or change your password at your sole discretion, at any time, by following the instructions located on the PDS eMarketer web site. You expressly agree to promptly notify PDS eMarketer  of any unauthorized use of your account or any other breach of security.

Jurisdiction.

If there is any dispute about or involving the Service provided by PDS eMarketer  , by using the Service, you agree that the dispute will be governed by the laws of the State of Ohio without regard to its conflict of law provisions. You agree to personal jurisdiction by an arbitrator or mediator and the federal courts of the State of Ohio. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial (or other) Arbitration Rules (including the Emergency Interim Relief Procedures), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Entire Agreement

This Agreement represents the entire agreement between you and PDS eMarketer  with respect to your use of the Service, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and BME with respect to your use of the Service.