Experiture Terms of Service

Prepared June 15, 2017

1. General provisions

Experiture, Inc., incorporated under the laws of the State of Delaware, with its principal place of business located at 210 Richardson St, Brooklyn NY 11222 (“Experiture, Inc.”, “Experiture”, “we”, “us”) is the service provider of the Experiture Service (the “Service”). These Terms of Service set the rules for the use of the Service by our Customers. By clicking the button to subscribe to the Service you (“you” or the “Customer”) accept these Terms of Service and undertake to use the Service in compliance with the provisions of this document. You should retain a copy of these Terms of Service for your records as upon your subscription they constitute a legal agreement between you and Experiture. If you do not agree with any of the provisions of this document, you may not subscribe to and use the Service.

Our Service is diverse and may include additional features, if ordered by you, so sometimes additional terms and conditions will apply. For example, the Service may be subject to (a) these Terms of Service; (b) Privacy Policy; and (c) Anti-Spam Policy; each of which you should read carefully and accept before ordering or activating any Service.  These agreements are hereby incorporated into this agreement by reference.

2. Service

Under the Service we provide you with:

  1. an access to a web-based platform with tools for building, managing and hosting your marketing assets, including target lists;
  2. an ability to send emails and SMS messages to your mailing lists hosted at Experiture platform, as well as an ability to create landing pages or microsites, social media messaging, and obtain customer information through use of web forms;
  3. Customer Service,
  4. additional features (add-ons), if ordered and paid separately by you,
  5. access to free templates, which you may use for the purpose of creating landing pages and sending emails via Experiture platform.

You may use the Service to transmit SMS messages, and send emails (“Transactions”) only to those recipients who have given you permission to add them to your mailing list and have not subsequently withdrawn such permission (“Subscribers”). In order to use the Service and manage your email or SMS marketing campaigns, you must create an individual account in the Experiture platform (“Account”). The Account may be accessed only with the use of your login credentials. We reserve the right to reject your subscription for any or no reason as long as it is not an unlawful reason.

You may also use the service to create, manage and update Personalized URLs (PURLs) and landing pages and host them on our servers. Within the Landing Page Creator you may, among others, create unlimited landing pages, integrate them either with PURLs or sub-domains provided by us or with your own domain, post various content, integrate with social media and other websites, and use our editor to fill out your landing page. We cannot and do not verify or check whether the domain name selected by you or the use of a given domain name infringes third party’s rights. We recommend you verifying whether the selected domain name or its use infringes third party’s rights. You should be aware that Experiture may be ordered by a court or other public authority to cancel, modify, or transfer the domain name chosen by you. You should also be aware that if we are sued or threatened with lawsuit in connection with the use of your domain name, we may turn to you to hold us harmless and to indemnify us.

You expressly agree that the quality of a streamed media file might differ from the uploaded stream, in order to conform and adapt to standards of transferring data, connecting networks or devices.

From time to time, Experiture may offer a 30-day free trial version of the Service (“30-Day Free Trial”). Within the 30-Day Free Trial you may store up to 250 Subscribers and create up to 2000 Transactions, and the Service is rendered for 30 days. It may also be limited in other ways. You may create only one Free Trial Account. You may upgrade the 30-Day Free Trial to a paid version at any point. However accounts which have not been upgraded to a paid version within the trial period or within 60 days after the trial period ends, will be permanently disabled.

You may upgrade your Account Plan at any time. If you make such a request during the subscription period, a part of the fee (for unused subscription period) will be credited towards your new fee.

We reserve the right to update, improve and expand the Experiture Service. In addition we may modify, replace, refuse access to, suspend or discontinue providing the Service, or change the prices in our sole discretion with no liability of us.

3. Technical requirements

We assure that the Service will operate with the latest official version of Mozilla Firefox, Google Chrome and Safari web browsers. In order to use the Service it is necessary that you have a device that allows you access to the Internet, have an email and a website browser installed with “cookies” and JavaScript enabled.

4. Registration and Use of the Service

Upon successful account registration you subscribe to the Service and agree to:

  1. observe these Terms of Service as well as the Experiture Anti-Spam Policy and Privacy Policy or their amended versions and any other policy developed, published and formulated by Experiture in connection with the Service;
  2. maintain and promptly update your contact details so that they are as current, complete and accurate as possible;
  3. send or stream through the Service only such materials that you have full rights to use and publish on the Internet;
  4. conform to the rules relating to sending out emails, in particular, commercial emails and the processing of personal data which are in force in the country of your residence;
  5. remove or quarantine all data and information of any person who has previously stated verbally and/or in writing that he or she does not wish to receive Services made by or on behalf of you;
  6. keep the secrecy of login credentials provided to you;
  7. receive commercial information about the products and services of Experiture.

5. Payments

You are obliged to pay in due time all fees for the use of the Service according to the Account plan you have chosen. We offer monthly and annual subscription. The current pricing is available by request.

Access to the Service is provided to you after we have received the subscription fee calculated on the basis of the Account plan you have chosen (pre-paid subscription). Where appropriate, tax on goods and services will be added to the payment price in accordance with currently effective rates.

You may pay fees using a check or credit card. If you choose to pay fees with a credit card you agree to pay them in the form of a recurring payment, under which the subscription fee is deducted automatically basing on the Account plan you have chosen. The recurring payment is initiated on the first day after the expiration date of the previous subscription (“recurring payment date”). If the recurring is unsuccessful at that point, we will retry to complete the payment transaction in the following days and, if the completion of the transaction is unsuccessful, we will assume that the Service is terminated. We are not responsible for any fees charged by credit cards issuers.

We will issue an invoice for the Service within 30 days of receipt of each payment. You expressly agree to receive invoices from us by electronic means of communication. For settlement purposes it is assumed that a month has 30 days and a year has 360 days.

We will monitor for the peak number of Transactions accumulated in all your campaigns in a given month, which means that Transactions are unique within the entire Account. If you exceed the monthly Transactions amount you purchased, the following rules will apply:

  1. you will pay an extra “Transaction Fee” above and beyond the monthly subscription price that you have initially purchased under your Account plan;
  2. if you exceed the maximum number of Transaction limits offered at the Experiture pricing level to which you are subscribed, the Additional Transactions Fee will be calculated as explained in point a) above.
  3. all additional payments mentioned above must be paid in the month directly following the month in which the Transaction limit was exceeded.

We reserve the right to change the fees for the Service at any time without notice. The new pricelist applies to all new Accounts and upgrades.

6. Content

All and any information, data, text, graphics, logos, video, software, music or other materials that you post, upload, transmit, stream or otherwise make available on your landing page(s) or email(s) with the use of the Experiture Service, or that your visitor uploads, posts or streams (“Content”) are your sole responsibility. This includes also any links to other websites or resources or other third party services that you use. We do not claim ownership of the Content and you retain all right, title, and interest in and to your landing page Content, with the exception of the materials which you upload from our Templates Gallery. You agree to have us present your emails, landing pages, and campaign results in our marketing materials, including case studies.

You are entitled to use graphics, icons, logos, information, fonts or other materials provided to you by us in the Templates Gallery solely for the purpose of creating landing pages with the Landing Page Creator. Please note that the Templates Gallery content may include materials which are subject to third party’s copyright. You acknowledge and agree that we have the right at any time and at our sole discretion to remove such materials from our Templates Gallery, disable access to such materials or demand that you immediately remove such materials from your landing page(s). If you do not satisfy our demand we will be entitled to delete such materials from your landing page(s) at our sole discretion, with no liability on our side. In aforementioned situations you will not be entitled to any reimbursement of any amount paid by you to us.

If you post, upload, transmit, stream or otherwise make available a third party content you are obliged to strictly adhere to such third party’s terms and conditions of service or license. If you share your Content through third party’s websites or emails you are obliged to comply both with these Terms of Service and the terms of service established by third parties whose service you use to share your Content.

7. Prohibited practices, content and industries

You are not allowed to use the Service in a manner that, either intentionally or unintentionally, violates any applicable local, state, national or international laws, good industry practice, these Terms of Service and our Anti-Spam Policy or any copyright or other right of a third party.

You agree that it’s your sole responsibility to ensure that your use of the Services requested by you, and transmitted on your behalf by Experiture comply with all applicable Laws. You represent and warrant that the owners of the phone numbers you provide to Experiture, to which outbound messages are transmitted through the Services, have consented or otherwise opted-in to the receipt of such messages and broadcasts. You agree that you will include clear opt-out/unsubscribe information on at least every fifth text message you send through Experiture’s Services and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association. You further agree that any individual requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and removed from your list of approved contacts used with the Experiture Services and the Experiture Sites.

You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts transmitted through the Experiture Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Experiture Services by visiting the following websites:

  1. Federal Trade Commission, https://www.ftc.gov;
  2. Federal Communications Commission, https://www.fcc.gov;
  3. DoNotCall Registry Info, https://www.donotcall.gov
    The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (https://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Experiture is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts and campaigns prior to using the Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns;

Practices that are strictly prohibited include:

  1. sending spam or otherwise unsolicited messages in violation of applicable laws;
  2. sending messages to any purchased or rented email lists, or any third party lists whatsoever;
  3. incorporating into emails any texts, photos, graphics, logos, software, articles, musical works and videos or other content that infringes into third persons’ copyright and/or rights related to copyright, trademark, patents, trade secret or other proprietary right of any third party;
  4. sending or storing materials that are obscene, threatening, abusive, harassing, defamatory, libelous, slanderous, deceptive, fraudulent, invasive of another person’s privacy, tortuous, or otherwise violate applicable law or Experiture’s rules or policies;
  5. associating any content streamed through the Service with pornography, adult-related material, child pornography, bigotry, racism, hatred, profanity, mail fraud, or any material which may be insulting to another person or a company;
  6. sending or storing material containing harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate services or any system, program, data or personal information, or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;
  7. modifying, reproducing, duplicating, copying, displaying, sublicensing, selling, creating derivative works from, exploiting or otherwise using any portion of the Service, especially the source code or the materials provided in Multimedia Studio, except as specifically provided and allowed by us;
  8. using the Service contrary to its primary purpose, especially for hacking or to solicit passwords, personal identifying information or credit card data for unlawful or phishing purposes, especially by making automated use of the system, such as using scripts, bots, spiders or scrapers;
  9. undertaking any other activity that in our opinion interferes with or is (or may be) harmful to our business, reputation, goodwill or the ability of other customers to effectively use our Service

There are some industries that send certain types of content resulting in higher-than-normal bounce rates and abuse complaints, which may affect the deliverability of Experiture’s platform. Therefore, you understand and accept that, as far as your business practices are concerned, you are not allowed to use the Service to stream, disclose, engage and/or offer to sell, either directly or indirectly, any goods or services connected with such high-risk industries. Our Customers are not allowed to use the Service to stream, disclose, engage and/or offer to sell, either directly or indirectly, any goods or services that:

  1. victimize, harass, degrade, or intimidate an individual or a group of individuals on the basis of religion, politics option, gender, sexual orientation, race, ethnicity, age, or disability;
  2. violate any law, statute, ordinance, or regulation including, without limitation, those governing consumer protection, Internet tobacco sales, unfair competition, anti-discrimination or false advertising;
  3. offer or disseminate fraudulent goods, services, schemes, or promotions (e.g. make-money-fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;
  4. are associated with any form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader (e.g. books, text, photos, videos, X-rated movies, pornographic materials, etc.), any materials which require individuals to be eighteen (18) or older to view or purchase those materials, escort services, and adult websites;
  5. are associated with the sale of:
    • any controlled drug that requires a prescription from a licensed practitioner; or
    • any over-the-counter drug, or
    • non-prescription drugs;
  6. associated with illegal telecommunications or cable television equipment, such as access cards, access card programmers and unloopers, cable descramblers or filters;
  7. are associated with weapons of any kind and related items, including firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives and martial arts weapons;
  8. market for:
    • nicotine, nicotine products, products imitating nicotine products, symbols related to smoking or nicotine;
    • alcohol of any kind;
    • drugs of any kind, products related to drugs, symbols related to drugs, the use of drugs of any kind;
    • medical services, medical aid, medical assistance, medicines;
    • video lotteries, cylindrical games, card games, dicing, and automated game;
  9. use the Service to call on minors directly to purchase products or services;
  10. encourage minors to influence their parents or other persons with an aim of impelling them to buy products or services marketed thru the Service;
  11. take advantage of minors’ inexperience and credulity; exploit the special trust minors have in their parents, teachers or other persons;
  12. unreasonably show minors in dangerous situations, or
  13. use the Service to affect the subconscious of a recipient.
  14. add, remove or modify the identifying header information, in an attempt to deceive or mislead the recipient;
  15. impersonate or attempt to impersonate any person or entity (including any of our employees or representatives) or service by using forged headers or other identifying information such as name, nickname, domain name, or email address. The use of anonymous re-mailers or nicknames does not constitute impersonation.

You may not use any hardware or software intended to damage or interfere with the proper and timely functioning of the Service, or to surreptitiously intercept any system, data or personal information from the Service nor any website owned or controlled by Experiture. You may not take any action that imposes unreasonable or disproportionately large load on the website network or other our service infrastructure.

8. Customer Service

We provide Customer Service via Email, Live Chat or Phone. When requesting customer service or submitting complaint, you should provide at least your account name. We do not reply or take any action based on “anonymous” support requests. . Customer Service contact details are available at Experiture.com and within your Account under “Support”. Most customer service enquiries are responded within 24 hours on business days. You have the right to be advised about the processing status of your support request or complaint.

9. Cancellation

You may cancel your Account at any time. An email, SMS or voicemail request to cancel your Account is not considered cancellation. Cancellation notice may be provided only by a named account administrator or billing contact. Please note that if you cancel your Account, your subscription will be terminated with immediate effect and all of your data (including Subscribers List, emails and statistics) will be permanently deleted. This operation is irreversible. You may not cancel your Account, unless you settle all your amounts due to Experiture. If you encounter any problems when cancelling the Account, contact our Customer Support Team.

10. Termination

We reserve the right to terminate or suspend the Service with immediate effect and refuse any and all current or future use of the Service in the event that you violate any of the provisions of these Terms of Service. Examples of activities we regard as violating our Terms of Service include:

  1. failing to make payment which became due,
  2. using the Service for abusive or prohibited practices referred to in Clause 6 hereof;
  3. exceeding at least one of the following spam complaints thresholds by the Customer:
  4. the maximum of a 0.1% spam complaint ratio, (number of complaints vs. delivered emails),
  5. the maximum of a 5% ratio with regard to email delivery attempts to non-existent email addresses,
  6. the Customer’s name or domain (to which the Customer redirects Subscribers through links contained in emails) is listed on the Spamhaus Registry Of Known Spam Organizations (ROKSO, https://www.spamhaus.org/rokso/) or such domain is listed on at least one of the following blacklists: URIBL (https://uribl.com/), SURBL (https://www.surbl.org/), SpamHaus DBL (https://www.spamhaus.org/dbl/) or ivmURI (https://dnsbl.invaluement.com/),
  7. the Customer is found spamming by SpamCop or any other anti-spam organization who reports to Experiture spam trap hits thru Unsolicited Commercial Email reports,
  8. breaches the rules on using our trademarks and other intellectual property,
  9. creating more than one Free Trial Account by the Customer
  10. Providing inaccurate, unreliable or false registrant contact details, or failing to keep such contact details up to date.

The amounts paid by you under these Terms of Service are non-refundable. Therefore, termination of the Service does not release you from the obligation to pay all and any fees already due as per our Refund policy.

11. Refund policy

30-Day Free Trial: this version of our Service requires credit card for signup. Your credit card will not be charged until the conclusion of the Free trial, if no cancellation notice is received.

This gives you a zero-risk way to try our Service for 30 days. If you decide to upgrade at any time during the 30-Day Free Trial, the free trial ends and your Account is upgraded to a Paid Account.

Paid Account: When you purchase a Paid Account or upgrade from a 30-Day Free Trial to a Paid Account, the Experiture billing system charges your credit card for the initial billing period. After that, the billing system automatically renews your Account every 90 days, (every 360 days if you choose the annual plan) and charges the appropriate amount to your credit card.

Cancellation/Termination: if you cancel your Account or if we terminate the Service as specified in Clause 8, no further amounts will be charged to your credit card. However, you are responsible for any amounts already charged to your credit card.

Refunds: our Service is a pay-as-you-go service. Therefore, we do not issue refunds, even if you cancel your Account immediately after your credit card is charged for the new billing period. For example, if we charge your credit card on August 10th, and you cancel your Account on August 15th, you are still responsible for paying for the entire year, if you have selected an annual plan. No subsequent charges are applied to your credit card, but the amounts already charged are not refunded.

We treat all customers equally, so we do not make exceptions to this policy.

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