(a) This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting the correct box at the end of this Agreement and typing “I Agree” or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not run an Acid Test.
(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “Email on Acid” or “we” means Email on Acid LLC, operator of the Site; and (iii) “Content” means any visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are viewing from the Site, together with any accompanying material.2. Standard Terms
We hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Email on Acid or the Email Client in question, as the case may be.3. Permitted Uses:
(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution.
For example, you cannot take screen shots of Acid Test results, crop out the logo and submit the results to your clients for re-sale. These uses will not be permitted as or constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted Derivative Work, you should contact us for expressed, written permission. Any use of the Content that is not a Permitted Use shall constitute infringement of this agreement.
(b) Only you are permitted to use the Content, although you may forward results containing Content to your clients for the purpose of gaining a sign-off or approval to send out the email blast, provided that such parties shall have no further or additional rights to use the Content or extract it from any file you provide.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content:
If there is any doubt that a proposed use is a Permitted Use, you should contact Email on Acid LLC for guidance.4. Standard Usage Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are “Prohibited Uses” and you may not:
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying all copies of the Content and any Permitted Derivative Works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from Email on Acid if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to Email on Acid in writing that you have complied with these requirements.
(b) Email on Acid reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.6. Limited Representations and Warranties
(a) The Email on Acid Site acts as an exchange of Content between those who provide Content to the public domain (in this case the Email Clients represented within our test results) and those who wish to upload Content (in this case your email including but not limited to your creative, photography, HTML and CSS).
Email on Acid grants no rights and makes no warranties regarding the use of names, people, trademarks, trade names, patented or copyrighted designs or works of art or architecture or other forms of intellectual property represented in any Content. While we have made reasonable efforts to properly simulate the correct results for each email client, Email on Acid does not warrant the accuracy of such information.
(b) THE ACID TEST RESULTS PROVIDED ARE “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE VISUAL REPRESENTATIONS PROVIDED, WARRANTIES OR CONDITIONS OF THE CODE ANALYSIS, OR THE VALIDITY OF YOUR HTML OR CSS. EMAIL ON ACID DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR TEST RESULTS WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT EMAIL ON ACID) WILL ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
(c) IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE USING CONTENT WITHIN YOUR EMAIL THAT IS COPYRIGHTED BY ANOTHER PARTY OR THAT COULD BE CONSIDERED INAPPROPRAITE, EMAIL ON ACID IS NOT TO BE HELD LIABLE FOR SUCH CONTENT.
(d) YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THIS WEB SITE AND THE MATERIALS INCLUDED WITHOUT LIMITATION ANY OF THE INFORMATION CONTAINED THEREIN.7. Limitation of Warranties and Liability
(a) IN NO EVENT SHALL EMAIL ON ACID OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
(b) IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF EMAIL ON ACID UNDER THIS AGREEMENT, OF THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO EMAIL ON ACID UNDER THIS AGREEMENT IN RESPECT OF THE USE OF THE RELEVANT CONTENT.8. Indemnification
You agree to indemnify, defend and hold Email on Acid, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “Email on Acid Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Email on Acid Party as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this Agreement.9. Privacy
Email on Acid is committed to respecting the privacy of the personal information of the individuals with whom we interact. We have developed a Website Privacy Statement to describe our privacy policies and practices and how we collect, use and disclose the personal information of those individuals who visit our website. Please see our Website Privacy Statement for further details.10. Accuracy of Test Results provided by Web site
Email on Acid updates the information on this Web site regularly. However, Email on Acid cannot guarantee or accept any responsibility or liability for the accuracy, currency or completeness of the information on this Web site. Email on Acid may revise, supplement or delete information, services and/or the resources contained in the Web site and reserves the right to make such changes without prior notification to past, current or prospective visitors.11. Linked Web sites
This Web site may provide links to third party Web sites for your convenience only. The inclusion of these links does not imply that Email on Acid monitors or endorses these Web sites. Email on Acid does not accept any responsibility for such Web sites. Email on Acid shall not be responsible or liable, directly or indirectly, for any damage or loss, caused or alleged to be caused by or in connection with the use of or the reliance upon any information, content, goods or services available on or through any third party Web sites or linked resources.12. Internet software or computer viruses
Due to technical difficulties with the Internet, Internet software or transmission problems could produce inaccurate or incomplete copies of information contained on this Web site. Computer viruses or other destructive programs may also be inadvertently downloaded from this Web site.
Email on Acid shall not be responsible or liable for any software, computer viruses or other destructive, harmful or disruptive files or programs that may infect or otherwise impact your use of your computer equipment or other property on account of your access to, use of, or browsing on this Web site or your downloading of any of the Materials from this Web site. Email on Acid recommends that you install appropriate anti-virus or other protective software.13. Email
Feel free to email Email on Acid here. However, the Internet is not a fully secure medium and any communication may be lost, intercepted or altered. Email on Acid is not liable for any damages related to communications to or from this Web site. You agree with respect to any information provided by you to us through this Web site or via e-mail that:
(a) You specifically agree and acknowledge that you have reviewed the terms of this Agreement and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
(b) Email on Acid’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is not assignable by you without Email on Acid’s prior written consent. Email on Acid may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(e) This Agreement will be governed under the laws of the State of Colorado and the federal laws of the United States applicable therein (without reference to conflicts of laws principles).
(f) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of Arbitration by a single arbitrator appointed in accordance with such rules. The arbitration shall take place in Denver, Colorado, and shall be conducted in the English language.
(g) This Agreement, any additional agreements, and all related arbitration documents or disputes shall be drawn up in English.15. Contact
If you have concerns relating to this Agreement, please contact Email on Acid here or via phone at (720) 242-7633.16. Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF EMAIL ON ACID AGREEING TO PROVIDE THE USE OF THE ACID TEST AND ITS RESULTS, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND EMAIL ON ACID, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND EMAIL ON ACID RELATING TO THE SUBJECT OF THIS AGREEMENT.
© Email on Acid LLC 2012. All rights reserved.