Terms and Conditions

In consideration of the mutual promises set forth in the attached Email Marketing Proposal and Agreement (the “Agreement”), Umpteen LLC. doing business as Email Broadcast (“Email Broadcast”) and Client(each a “Party”; together the “Parties”) agree the following terms and conditions (“Terms”) apply to the Agreement:

1 Services to be performed

Client hereby engages the services of Email Broadcast to provide email marketing services in substantial compliance with the details in the Agreement.

2 Compensation

2.1. Fees; Initial Investment & Deposits.

As compensation for the Services provided, Client shall pay Email Broadcast according to the Compensation and Payment Schedule in the Agreement. 

2.2. Payment.

Initial investment amount will be charged to the credit card listed upon execution of the agreement. For monthly investments, Email Broadcast will bill the Client’s credit card on file or authorized ACH payment at the beginning of each month’s service.  

Credit cards will have a 3% processing fee applied to them.

Declined credit card charges or insufficient balance for ACH withdrawals will result in a $25 bookkeeping fee.  If the charge to Client’s credit card fails or ACH payment is rejected, and Client does not arrange alternate payment within 15 days from the date of an invoice, an amount fee of $250 will be charged.

2.3. Withholding of Work Product or Deliverables.

In addition to the additional fees imposed under Section 2.2 for delinquent payment of fees or expenses, Email Broadcast shall be entitled to, at its sole discretion, withhold Work Product, Final Deliverables, or services to which it is obligated under this Agreement until all delinquent fees and/or expenses are paid. Withholding of such items or services under the provisions of this Section shall not be considered a breach of the Agreement by Email Broadcast. Failure of Client to fully pay any fees within 30 days after the applicable due date shall be deemed a material breach of the Agreement and will be sufficient cause for immediate termination of the Agreement by Email Broadcast. Any such suspension does not relieve Client from paying past due Monthly Investments, plus interest, cancellation fees, and in event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, attorneys' fees and costs, court costs, and collection agency fees.

2.4. Taxes.

The Client will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from its receipt of the Services or use of the Services. The fees paid under this Agreement include full compensation for all taxes that Email Broadcast is required to pay. Email Broadcast will be responsible for any other taxes or fees resulting from its performance of this Agreement, including without limitation, income, property, and employment taxes.

3. Ownership.

3.1. Client Materials.

Any content supplied by Client, including any email lists, graphics, pictures, audio, video, logos and text for Email Broadcast’s use in providing the Services (“Client Materials”) will remain the property of Client. Client grants Email Broadcast a license to use Client Materials solely for the purpose of performance of its obligations under this Agreement. 

3.2. License of Final Deliverables.

During the Term of the Agreement (as defined in Section 5.1), and for as long as Client remains current on its obligations under the Agreement, Email Broadcast grants to Client a non-exclusive, non-transferable (except as specifically provided in Section 7.1), world-wide right and license to distribute all Final Deliverables only in the format provided by Email Broadcast without the right to alteration or derivation thereof. “Final Deliverables” means the final versions of Deliverables provided by Email Broadcast and accepted by Client. 

3.3. License to Pre-Existing Materials; Ownership of Work Product.

Email Broadcast will retain all right, title and interest in all of (i) its pre-existing programs, email templates, checklists, materials, proprietary information, files and technology, including, without limitation, those items which are utilized by Email Broadcast in providing the Services and (ii) all improvements and derivatives of the foregoing (the “Pre-Existing Materials”). Upon payment in full of all fees due for the Services, Email Broadcast hereby grants to Client, a perpetual, non-exclusive, non-transferable (except as specifically provided in Section 7.1), world-wide right and license to use the Pre-Existing Materials in the un-modified form utilized by Email Broadcast in providing the Services. Email Broadcast will retain all right, title and interest in all “Work Product” shall mean all images, graphics, diagrams, designs, schematics, concepts, versions, fonts, and deliverables presented to Client in connection with Email Broadcast’s provision of the Services; Work Product shall exclude Final Deliverables.

4. Warranty and Disclaimers.

4.1. Limited Warranty.

Email Broadcast warrants that the email campaigns created as part of the Services will be sent in accordance with the specifications set forth in the Agreement. Should the email campaigns, during such warranty period, not be sent as warranted herein, Email Broadcast will resolve the problem free of additional charge within a commercially reasonable period of time. The foregoing are Client’s sole and exclusive remedies.

4.2. Disclaimer.

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EMAIL BROADCAST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, AND MERCHANT-ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

4.3. Limitation of Liability.

The cumulative liability of Email Broadcast to Client for all claims whatsoever related to the Services, the services provided hereunder or this Agreement, including any cause of action sounding in contract, tort, or strict liability, will not exceed the total amount of all fees actually paid to Email Broadcast by Client under the Agreement.

4.4. Third Party Services.

In providing the Services, Email Broadcast may use third Party services, including SAAS platforms and integrations. Email Broadcast makes no representation about the availability, continuation, or performance of those services, and shall have no liability for any termination, failure, down time, or errors with such services.

5. Term and Termination.

5.1. Term. The term of the Agreement shall be from the date of the Agreement through the Initial Term (indicated by the Client above noting the minimum number of months service) and through the completion of 12 months of service, or until otherwise terminated as provided herein. At the end of 12 months of service the Agreement will be automatically renewed at the discount rate noted in the solution description.  The Client may cancel the automatic renewal by providing a written notification with at least a 30 day notification period.    The automatic renewal of the contract will continue indefinitely until the Client provides notice of termination.

Starting at month twenty-five (25) of services and recurring every 12 months thereafter, an annual increase of three percent (3%) of the monthly services investment will be applied. 

5.1. Term.

The term of the Agreement shall be from the date of the Agreement through the Initial Term (onboarding) and upon services started until otherwise terminated as provided herein. After 12 months of service the monthly renewal will use the discount rate noted in the solution description.  The Client may cancel the automatic renewal by providing a written notification with at least a 30 day notification period.    The automatic renewal of the contract will continue indefinitely until the Client provides notice of termination.

Starting at month twenty-five (25) of services and recurring every 12 months thereafter, an annual increase of three percent (3%) of the monthly services investment will be applied. 

The Client may choose at any time to change their agreement structure from Month-to-Month to a 12-month agreement and enjoy further discounts this brings.    The updated monthly service pricing will be started at the beginning of the next billing cycle.  The client will also receive credit for all prior months into their 12-month contract term.

5.1. Term.

The term of the amendment shall be from the date of the amendment through the Initial Term and for the PILOT period  from the first billing date.  At the end of the pilot period the Agreement will be automatically extended to an auto renewing month-to-month contract.  The Client may cancel the automatic extension of the PILOT or the subsequent month-to-month contract by providing a written notification with at least a 30 day notification period.  

Starting at month twelve (12) of services and recurring every 12 months thereafter, an annual increase of three percent (3%) of the monthly services investment will be applied. 

5.2. Material Breach.

Either Party may terminate this Agreement for a material breach that remains uncured for seven (7) days after the breaching Party receives notice of such breach from the non-breaching Party.

5.3. Good Faith and Fair Dealing. 

Both Parties agree to abide by the terms of the contract with good faith and fair dealing.   Either Party may terminate this Agreement if the other party does not comply with these standards and does not resolve them within seven (7) days after the other party notifies them. 

5.4. Right to stop services.   

The Client retains the right to make a written request that Email Broadcast stop providing services during the term of the contact.   Email Broadcast will stop services within seven (7) days of receiving the written notification.   The Client remains liable for the remaining payments per the terms of this agreement which can either be paid in a lump sum or continue on a monthly basis.   

5.5. Survival.

The following Sections will survive the termination of this Agreement as applicable: 3 (Ownership), 4 (Warranties and Disclaimers), 5.4 (Survival), 6 (Confidentiality) and 7 (General), together with accrued payment obligations.

6. Confidentiality.

6.1. Use of Confidential Information.

The Parties, from time to time, may disclose Confidential Information (as defined below) to one another. Accordingly, each Party agrees as the recipient (the “Receiving Party”) to keep strictly confidential all Confidential Information provided by the other Party (the “Disclosing Party”). The Receiving Party further agrees to use the Confidential Information of the Disclosing Party solely for the purpose of exercising its rights and fulfilling its obligations under this Agreement. The Receiving Party may not use for its own benefit or otherwise disclose any of the Confidential Information of the Disclosing Party for any other purpose.

6.2. Definition of Confidential Information.

“Confidential Information” means information in any form, oral, graphic, written, electronic, machine-readable or hard copy consisting of (i) any non-public information provided by the Disclosing Party, including but not limited to, all of its inventions, designs, data, source and object code, programs, program interfaces, know-how, trade secrets, techniques, ideas, discoveries, marketing and business plans, pricing, profit margins, customer email lists, and/or similar information or (ii) any information which the Disclosing Party identifies as confidential information or the Receiving Party should understand from the context of the disclosure, to be confidential information.

6.3. Exclusions.

The term “Confidential Information” will not include information that (a) is publicly available at the time of disclosure by the Disclosing Party; (b) becomes publicly available by publication or otherwise after disclosure by the Disclosing Party, other than by breach of this Section by the Receiving Party; (c) was lawfully in the Receiving Party's possession, without restriction as to confidentiality or use, at the time of disclosure by the Disclosing Party; (d) is provided to the Receiving Party without restriction as to confidentiality or use by a third Party without violation of any obligation to the Disclosing Party, or (e) is independently developed by employees or agents of the Receiving Party who did not access or use the Confidential Information.

6.4. Email Broadcast Rights.

Notwithstanding the foregoing, Email Broadcast shall retain the right to use and publish (without remuneration to Client) aggregate data about Client’s campaign (e.g., audience size, open rates, click through rates, conversions, and the like) for Email Broadcast’s marketing and research-related purposes and that Email Broadcast shall have no obligation to include reference and/or attribution to Client for such findings when used for such purposes. The Parties hereby also agree and acknowledge that Email Broadcast shall have the right to post and make available (without remuneration to Client) on Email Broadcast’s website any and all reports generated by Email Broadcast pursuant to Agreement; such reports may not contain personally identifiable information obtained by Email Broadcast pursuant to this Agreement.

7. General Provisions.

7.1. Other Obligations of Client.

(a) In addition to these Terms and the Agreement, Client agrees to be bound by and comply with the terms of service, including amendments and modifications thereto, and agree that Email Broadcast is an intended third Party beneficiary, of any third party provider’s terms of service, with rights to enforce such terms of service, as provided to Client from time to time upon request.

(b) Client accepts and agrees that Email Broadcast shall have the exclusive right to send emails to addresses provided to Email Broadcast by Client. Client understands that failure to have Email Broadcast as the single point of management of the email addresses may result in Client being subject to liability for violations of the CAN-SPAM Act (US), CASL (Canada), or GDPR (Europe) arising from failure of client to honor unsubscribe requests. The Client may remove email addresses from the list maintained by Email Broadcast, and in no event shall any email address be allowed by Client to be used on more than one list. Alternatively, subject to the pricing and other Terms, Client may request Email Broadcast segment the list and send “extra messages” to such segment. Client shall defend, indemnify, and hold harmless Email Broadcast from any claims or damages arising from Client emailing addresses on the list provided to, or developed by Email Broadcast. This provision shall not apply to Client’s automated transactional messages such as order confirmation, shipping status, or customer service department (for non-marketing messages).

(c) Client agrees to the extent that any provisions in a third party’s terms of service conflict with these Terms, these Terms shall control.

7.2. Transfer or Assignment.

A Party will not have the right to transfer or assign this Agreement or rights granted under it except in connection with (a) the sale of all or substantially all of the Party’s assets or a line of business sale; (b) the sale of a majority of the capital stock of the Party or (c) the merger of the Party with another entity. In each such instance, the Party may transfer the Agreement to the acquirer or surviving company. In no case, does the sale or merger of a Party affect the term of or terminate the Agreement.

7.3. Force Majeure.

Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.

7.4. Compliance with Laws.

Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, the CAN-SPAM Act.

7.5. No Agency.

Email Broadcast is an independent contractor and neither Party's employees will be considered employees of the other Party for any purpose. The Agreement does not create a joint venture or partnership, and neither Party has the authority to bind the other to any third Party.

7.6. Governing Law; Venue.

The Agreement will be governed and construed in accordance with the laws of the State of Washington State without regard to the conflicts of laws or principles thereof and controlling US federal law. The Parties agree that all disputes in any manner relating to or arising out of this Agreement shall be initially referred to mediation. If mediation is unsuccessful, the dispute shall be resolved through binding arbitration under the auspices of the American Arbitration Association. The decision or award of the arbitrator shall be binding upon the parties and shall be enforceable by a judgment entered in a court having jurisdiction. Any action to enforce or interpret the terms of these Terms, the Agreement, or otherwise arising out of the Services shall be held in King County Washington State. Each Party hereby agrees to submit to the jurisdiction of, and agree that venue is proper in, in any such legal action or proceeding.

7.7. Entire Agreement; Amendment.

These Terms, the Agreement, and any incorporated schedules or exhibits, constitute the entire agreement between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement. The Agreement may be amended or modified only by a written instrument executed by both Parties.

7.8. Assignment.

Client may not assign the Agreement or any rights or obligations thereunder, without the prior written consent of Email Broadcast, which may be withheld for any or no reason.

7.9. Counterparts.

These Terms and the Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.