1. EligibilityIn order to use the Service, you must:
2. TERMWhen you sign up for an account and agree to these Terms, the Agreement between you and Showtag is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Showtag account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. If you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.
3. Closing Your AccountYou or Showtag may terminate the Agreement at any time and for any reason by terminating your Showtag account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your monthly prepayment for a Monthly Plan. We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, such as for a breach or violation of the Agreement.
4. ChangesWe may change any of the Terms by posting revised Terms on our Showtag Site. Unless you terminate your account, the new Terms will be effective immediately upon posting and apply to any continued or new use of the Service. We may change the Service, Add-ons, or any features of the Service at any time, and we may discontinue the Service, Add-ons, or any features of the Service at any time.
5. Account and PasswordYou’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Showtag is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.
6. Account DisputesWe don’t know the inner workings of your organization or the nature of your personal relationships. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we’ll require you to resolve the matter through proper channels outside of Showtag.
7. Paid Monthly PlansWhen you sign up for a paid monthly plan, you are required to self-select both your projected audience, as described in Section 7B below, and your package (e.g., Free, Starter, Professional, Business or Enterprise) (together, your “Monthly Plan”) from those posted on our Showtag Site based on your anticipated use of the Service. Each Monthly Plan offers different pricing and feature options. Once you select your Monthly Plan, Showtag will never automatically upgrade or downgrade your Monthly Plan. So, give yourself room to grow if you’ll need it! If you exceed your Monthly Plan usage limits (by exceeding the total number of Showtag Enabled views), you will incur additional charges for the prior billing cycle based on your current Monthly Plan, which will be detailed on your bill and in your account. Before paying for your Monthly Plan for the first time, you will have an opportunity to preview the additional charges which would apply to your Monthly Plan should you incur them by exceeding your self-selected usage limits. If you decide to proceed, and you incur additional charges, you agree to pay them on or before the next Pay Date, as described below. You will always have the option to upgrade to a higher tier at any time. If you upgrade during a billing cycle, you may elect to upgrade your package, your monthly charge for that billing cycle will be calculated based on the number of days in that billing cycle during which you were at each of the lower tier and the higher tier (including any applicable additional charges for the higher tier). You will also have the option to downgrade to a lower tier at any time, but if you elect to downgrade during a billing cycle, your downgrade will not be effective until the end of that billing cycle, and you will still be charged for that entire billing cycle at the higher tier (including any applicable additional charges for the higher tier).
8. Number of videosYou may have more videos uploaded to the Tool than that you have published. Only the views on published content counts towards your total number of views for purposes of your Monthly Plan or Free Plan. The total number of views is calculated on a monthly basis and each month the counter is reset to zero.
9. Free PlansIf you use the Service under the free plan (“Free Plan”) and you want to go over the Free Plan limits, you’ll be required to upgrade your account to, and select and pay for, a Monthly Plan. Monthly Plans are described in Section 7A above. If you exceed your Free Plan limits, or otherwise upgrade your account to a paid Monthly Plan, you’ll only be provided one complimentary downgrade to the Free Plan (provided your sending volume and audience numbers drop down to the Free Plan limits again). If you go over the limits for the Free Plan more than once, you’ll no longer qualify for the Free Plan, even if your future sending volume and audience numbers are within the limits of the Free Plan.
10. PaymentAs long as you’re a Member with a Monthly Plan or otherwise have an outstanding balance with us, you’ll provide us with credit card (“card”) information and authorize us to deduct your charges against that card, or authorize Paypal to do the transaction on your behalf. You’ll replace the information for any card that expires with information for a valid one. If your card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new card. Anyone using a card represents and warrants that they are authorized to use that card, and that any and all charges may be billed to that card and won’t be rejected. If we’re unable to process your card order, we’ll try to contact you by email and may suspend your account until your payment can be processed.
11. Charges for Add-OnsIf you use an Add-on that has a charge, then you’ll be billed that additional amount with each billing cycle for as long as the Add-on is active. Your billing cycle for an Add-on may differ from your billing cycle for your Monthly Plan or other features of the Service, and certain Add-ons may require upfront payment for their entire billing cycle. If you use Mandrill to send bulk emails in violation of our Acceptable Use Policy, then we may charge you at the comparable Showtag plan or terminate your account.
12. Billing ChangesWe may change our fees, including our charges for Monthly Plans and Pay as You Go Credits, at any time by posting a new pricing structure to our Showtag Site or in your account and/or sending you a notification by email. Quoted fees don’t include sales or other transaction-based taxes of any kind.
13. Feedback and Proprietary RightsWe own all proprietary rights in the Service, including, but not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights. You will respect our proprietary rights in the Service, and you may only use our brand assets according to our Brand Guidelines.
15. Right to Review Content and CampaignsWe may view, copy, and internally distribute Content from your Campaigns and account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service. We use these Tools to find Members who violate these Terms or laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts.
16. General RulesBy agreeing to these Terms, you promise to follow these rules:
17. Reporting AbuseIf you think anyone is violating any of these Terms, please notify us immediately. If you have viewed harmful content that has been made interactive with the Showtag tool, please report it.
18. Bandwidth Abuse/ThrottlingYou may only use our bandwidth for your Content and Campaigns. We provide image and data hosting only for your use of the Service, so you may not host videos or images on our servers for anything else. We may throttle your sending or connection through our API at our discretion.
19. Compliance with LawsYou represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (“EU Data Privacy Laws”), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities.
20. Limitation of LiabilityTo the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Service, including any downloads from the Showtag Site; (ii) we and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.
21. No WarrantiesTo the maximum extent permitted by law, we provide the Service as-is. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.
22. IndemnityYou agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (i) your Content, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you’ve made to us.
23. Equitable ReliefYour violation of these Terms may cause irreparable harm to us and our Team. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate these Terms (meaning we may request a court order to stop you).
24. Subpoena FeesIf we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
25. DisclaimersWe and our Team aren’t responsible for the behavior of any third parties, agencies, linked websites, or other Members, including third-party applications, products, or services for use in connection with the Service (each, a “Third-Party Integration”). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.
26. Notice to U.S. Government End UsersThe Software and the Showtag Site, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:
27. AssignmentsYou may not assign any of your rights under this Agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
28. Choice of LawThe laws of The Netherlands will apply to any dispute related to the Agreement or the Service. You acknowledge and agree that any dispute related to the Agreement or the Service itself will be decided by the state or federal courts in Amsterdam, The Netherlands and each party consents to personal jurisdiction in those courts.
29. Force MajeureWe won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.
30. SurvivabilityEven if this Agreement is terminated, the following sections will continue to apply: Feedback and Proprietary Rights, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
31. SeverabilityIf it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.
32. InterpretationThe headers and sidebar text are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms won’t affect the way the Agreement is interpreted.
33. WaiverIf we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
34. No Changes in Terms at Request of MemberBecause we have so many Members, we can’t change these Terms for any one Member or group.
35. Further ActionsYou’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
36. Notification of Security IncidentIf we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we’ll notify you if required by law. In that event, we’ll also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we’re prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of Showtag for such incident.
37. NoticesAny notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Showtag Site. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Showtag, 675 Ponce de Leon Ave NE, Suite 5000, Atlanta, Georgia, 30308, or any addresses as we may later post on the Showtag Site.
38. Entire AgreementThese Terms and any Additional Terms you’ve agreed to by enabling any Add-ons make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate the corresponding Add-on.
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