1. TARA Corporation Inc. DIGITAL-FLYER END USER LICENSE AGREEMENT
The terms and conditions in this agreement (the "Agreement") will govern your (the "User") access to Digital-Flyer.com (doing business as "TARA ") Services and your use of the data you obtain by use of the Services. TARA grants to the User a non-exclusive right during the term of this Agreement to use the Services pursuant to the terms and conditions set out herein. Your use of the Services confers no title or ownership in the Services. All ownership rights remain in Digital-Flyer.comInc or its third party suppliers, as the case may be.
2. SERVICES TO BE RENDERED AND DELIVERY OF SERVICES
TARA offers its services on an "as is" basis. Through the "Services", TARA provides marketing tools, information, information management and storage and support. Users can create and send e-mail campaigns using the tools to distribute content supplied by the User to e-mail addresses also supplied by the User. The User acknowledges that TARA does not create any content and that TARA is not the author or the publisher of any campaign. The User further acknowledges that TARA does not rent or sell e-mail lists. TARA reserves the right, but is not obligated to, review and approve any content posted by Users. TARA disclaims all copyright and other rights in such content and all responsibility for them. TARA retains the right to cancel and delete any campaign violating its Usage Rules as defined by TARA set forth in Section 7. TARA reserves the right to amend or update these rules at any time without notice to the User by posting the latest TARA Digital-Flyer End User License agreement to its website. By permitting direct e-mail campaigns, TARA makes no warranties or representations of any kind as to the accuracy of the content, legality or suitability of the subject matter. TARA specifically disclaims liability for direct, consequential or incidental damages arising from such campaigns. By posting an e-mail campaign from TARA , User warrants that the content is true, and that User will indemnify TARA against any and all, direct, indirect or consequential claims and alleged claims that may arise from User's use of the Services. User will also indemnify TARA in the event that TARA shares the User's name with third parties for violations of Usage Rules. By using TARA Services, the User is giving TARA permission to copy and/or store User content, contact lists and other information. TARA will not use the User content, contact lists or other User information for any purpose that violates its privacy policy located on its website at http://www.digital-flyer .com/privacy.html. TARA reserves the right to amend its privacy policy from time to time without notice to the User by posting the updated Privacy Policy to its website. TARA will use reasonable efforts to ensure posting of the User campaign at the scheduled time. However, TARA reserves the right to alter the time and date of delivery of the campaign and the delivery of the results without prior notification to the User of such a change. TARA also reserves the right to limit the number of e-mails that can be sent, per campaign, at any time.
3. ELIGIBILITY
The Services are available to individuals who are eighteen (18) years of age or older as well as corporations and other organizations who can form legally binding contracts under applicable law. If a User does not qualify, do not attempt to use the Services. You will provide true, accurate, and current information about yourself as requested by the sign up, registration or billing process. TARA may refuse to offer the Services to any person, corporation or organization and may change the criteria for eligibility, at any time, in its sole discretion. TARA retains the right to terminate your account and your rights to use the Services if there are reasonable grounds to believe that any data you provide is or becomes untrue, inaccurate, not current or incomplete, or if you are in breach of the Usage Rules.
4. ACCOUNT PASSWORD AND SECURITY
The User is responsible for maintaining confidentiality of its user name and password. Furthermore, the User is entirely responsible for any and all activities that occur under its user name and password. The User is to immediately notify TARA of any unauthorized use of the account or any breach of security.
5. MODIFICATIONS TO THE SERVICES
TARA reserves the right to modify the Services, temporarily or permanently, with or without notice to the User and TARA is not obligated to support or update the Services. TARA will not be liable to the User or any third party in the event that TARA exercises its rights to modify the Services.
6. MODIFICATION OF TERMS AND CONDITIONS
TARA may, at any time and at its sole discretion, modify the terms and conditions of this Agreement. Any such modifications will be made available online and will be effective immediately upon posting to the Digital-Flyer website. User agrees to assume responsibility for periodically reviewing this Agreement. By continuing to use the service, following the initial posting date of modifications made by TARA , User agrees to be bound by the Agreement as amended. User may terminate this agreement in accordance with Section 12.
7. USAGE RULES
The User represents, warrants, covenants that use of the Services will only be in compliance with this Agreement and all applicable laws. With regard to e-mail campaigns, the User specifically agrees not to use the Services: a. To send e-mail to any party who has not given their permission to receive e-mail from the User. User also acknowledges that it is unlawful to send e-mails to addresses that were harvested (eg obtained from an automated scan of a website) knowingly or unknowingly, and agrees to never send e-mails to such addresses, and accept liabilities for misuse. User agrees to abide by RAEA 's Anti-Spam policy at http://www.digital-flyer.com/ antispam.html. TARA reserves the right to update and/or amend this policy from time to time without notice to the User by posting the Anti-Spam policy to its website. Furthermore, the User understands the repercussions of the contravention of this policy, including but not limited to termination of their account without refund of any monies paid. b. For any unlawful purposes. c. To harass, threaten, embarrass or cause distress, unwanted attention or discomfort to a person or entity. d. To send content or links that contain nudity or sex pornography material of any kind to individuals under age 18, or to anyone on lists that are not limited to people age 18 or older. e. To send, submit or publish any defamatory, inaccurate, abusive, obscene, profane, or threatening material which is racially or ethnically offensive or which infringes upon the right of any third party, as determined by TARA . f. To send content that contains links to web pages that contain nudity, sex, pornography, tasteless images, foul language, hate propaganda, anything illegal, illegal software, serial numbers for unlocking software, mail fraud, pyramid schemes or is otherwise insulting to another person(s). g. To encourage the use of any controlled substance, transmission of material, information or software in violation of any local, state or federal law. h. To impersonate any person, including but not limited to, an official of TARA or an information provider, or communicate under a false name or a name that the User is not entitled or authorized to use. i. To upload, post or reproduce in any manner any material protected by copyright without the permission of the copyright owner. j. To send content that promotes or provides instructional information about illegal activities, or promoting physical harm or injury against any group or individual. The User agrees not to directly or indirectly reverse engineer, decompile, disassemble, or otherwise attempt to discover source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services of any software, documentation, or data related to the Services. The User also agrees not to remove any proprietary notices or labels from the Services or any software, modify, translate, or create derivative works based on the Services or any software, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any software. The Services shall not be used to create campaigns to be sent by other e-mail service providers. The User agrees not to remove or export from Canada or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restriction, laws or regulations of Canada or any other country. In the event that the User violates one of the above usage rules, or for any other reason deemed appropriate by TARA , TARA reserves the right to suspend or terminate, with or without notice, access to the User's account and all related data. TARA also reserves the right to modify the Users data with e-mail notice provided to the User within one business day except in the case of Spam complaints by ISPs or e-mail recipients, in which case, the name of the complainant/e-mail recipient will be immediately unsubscribed from the User's List/s without notice to the User. In addition, if TARA gets any complaints from the User's use of the Services, being complaints from e-mail recipients, ISPs, domain name providers, or other complaints, TARA reserves the right to share the User's name and the fact that there have been complaints, with any third party, including other providers of e-mail marketing services.
8. USE AND STORAGE
TARA may store User information, content, contact lists, e-mails, campaign activity statistics, reports and other information in its databases for the User. TARA reserves the right to establish general practices and limits concerning the use of the Services, including without limitation the maximum number of days that information is stored, the maximum amount of disk space that will be allotted to each User, the maximum size of campaigns sent through TARA 's Services, the scheduled time of a campaign and the maximum number of occasions that the User may access the Services in a given period of time. TARA has no responsibility or liability for the deletion or failure to store any messages, content or other information maintained or transmitted through the Services. At any time TARA may determine that User information can no longer be stored by TARA or deem User information to be inappropriate and remove it from its databases with or without notice to the User. If the User does not log into its account for more than 90 days, if the User does not pay for the services, if a User account is terminated for breach of this EULA, or if the User fails to remedy any breach as notified by TARA , the account will become inactive. When an account is inactive, at TARA 's sole discretion, TARA may notify the User by e-mail. Inactive accounts have 30 days to become active after notification or the account and its data may be permanently removed from the TARA databases. Any information stored on the TARA servers may be deleted at any time by TARA .
9. OWNERSHIP OF PROPRIETARY INFORMATION
The User acknowledges and agrees that the Services and TARA logos and trade names are the property of TARA or its affiliates or suppliers. User also acknowledges that TARA owns and/or has all requisite rights in and to any software necessary to provide the Services under this Agreement. "Digital-Flyer", "TARA Visionpool", "TARA ", "TARA Tech", "TARA Consulting", "TARA Products" and the TARA logo are trademarks of TARA . All other marks that appear throughout the Services are the property of their respective owners. The User fully understands and acknowledges that they are not granted any right or license whatsoever to use any of the marks and logos owned by TARA or of any such other entity, and that all such uses of any of the marks appearing throughout the Services is strictly prohibited without prior written consent of TARA . The User understands that the TARA Services and its website also contain or may contain copyrighted or other proprietary materials of TARA , its sponsors, advertisers or other third parties. The User understands and acknowledges that, except as strictly necessary for personal viewing and use of the Services or the TARA website by means of a standard Internet browser (such as Microsoft Internet Explorer and Netscape Navigator), the User is not granted any right or license to use, link to, reproduce, reverse engineer, modify, duplicate, distribute, display or perform any such copyrighted materials used or displayed on this Website or to permit others to do the same, and that all such uses are prohibited without the prior written consent of TARA .
10. DISCLAIMER OF WARRANTIES
At TARA 's request, the User agrees to defend, indemnify and to hold harmless TARA , its officers, directors and employees from any claims arising from the User's use of TARA Services or the User's breach of the Terms of service, including, without limitation, claims of copyright infringement, patent infringement, misappropriation of trade secrets, libel, slander, trade libel, defamation, harassment, invasion of privacy or fraud. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE INFORMATION ARE PROVIDED BY TARA ON AN "AS IS" BASIS, AND TARA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, OMISSIONS, COMPLETENESS, TIMELINESS OR DELAYS WITH RESPECT TO THE SERVICE, INFORMATION OR PRODUCTS. IN NO EVENT WILL TARA BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICES, INFORMATION OR PRODUCTS PROVIDED ON THE WEBSITE. IN PARTICULAR, TARA WILL NOT BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE USE OF TARA 's SERVICES, ITS WEBSITE OR THE INFORMATION OR DATA CONTAINED THEREIN, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE. TARA , ITS AFFILIATES ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO THE SERVICE, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT OR TORT, WILL BE LIMITED TO THE AGGREGATE AMOUNT OF CHARGES FOR SERVICES PAID BY THE USER TO TARA WITH RESPECT TO ANY SERVICES DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM(S).
11. CHARGES FOR SERVICES
The Services are charged according to the pricing plan selected and agreed upon by the User. TARA reserves the right to modify or otherwise alter price plans, add new types of plans or vary the pricing at any time. These changes will be available to the User on the digital-flyer.com website. The User is responsible for reviewing the pricing and remaining aware of the fees charged by TARA . Users are charged for e-mails sent on a per campaign basis. The rate card determines the charge per email in effect at the time the campaign is run. The User may cancel this account at any time. In the event that the User fails to pay for Services, in accordance with the User plan, TARA reserves the right to suspend or terminate, with notice as set forth in Section 12, access to the User's account and all related data and remove all the User data permanently form their servers.
12. TERMINATION
This Agreement may be terminated by TARA at any time by notifying the User by e-mail. If, as a result of the User violating the Usage Rules, the User's account is terminated by TARA , the following will apply: (a) No refund of any monies prepaid for the current month or Initial Period will be given (b) If the User has pre-paid for more than the Initial Period in advance, a refund of the pre-paid funds less a Termination Fee equivalent to six month of that User's Volume Plan will be charged. The termination of the Agreement by either party will not affect the User's obligation to pay the charges incurred for services consumed and any fees due and payable, under the termination clause of this contract. All terms of this Agreement which by their nature survive termination, will survive termination, including without limitation, ownership, warranty disclaimers, indemnification and limitations of liability. Upon termination by TARA, the User's right to use the Services will terminate immediately. The User acknowledges and agrees that TARA may remove the User's files and information.
13. EFFECT OF TERMINATION
User will pay any outstanding usage fees under any Plans and the Termination Fees due to TARA immediately upon termination by the User.
14. MISCELLANEOUS
User acknowledges that the software, algorithms and other processes used to provide the Services, the content (other than content owned by the user or any third party), Usernames, passwords, look, feel and functionality of the services are the property of TARA or in the case of services being offered by TARA 's partners under approved distribution agreements, the property of TARA 's partners. These terms and conditions represent the complete, final and exclusive agreement between TARA and the User, and supersede and merge all prior oral, written or electronically transmitted agreements, representations and understandings between TARA and the User. Any notices prescribed in this Agreement to be made "in writing" may be delivered by e-mail, Facsimile or Post. The laws of the Province of Alberta will govern this Agreement. If any of the provisions of this Agreement is determined by a court to be void, invalid, unenforceable or illegal, the enforceability of the other provisions of this Agreement will not be affected.
